Virginia Is for Gay Lovers

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http://www.theatlantic.com/politics/archive/2014/07/virginia-is-for-gay-lovers/375190/

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"[T]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men."

This is a line from the famous 1967 Supreme Court case Loving v. Virginia, which established interracial couples' right to marry. On Monday, the Fourth Circuit Court of Appeals recalled Loving in its ruling in Bostic v. Schaefer, which affirmed a lower court's ruling striking down Virginia's constitutional ban on same-sex marriage.

In his opinion for the 2-1 majority, Judge Henry F. Floyd delivered a strongly worded argument for the rights of same-sex couples. "We recognize that same-sex marriage makes some people deeply uncomfortable," he wrote. "However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws .... Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance."


Judge Paul Niemeyer, who dissented in the Fourth Circuit's decision, argued that the majority's ruling failed to account for the history of the "right to marry" in America. "[S]ame-sex marriage is a new notion that has not been recognized for most of our country’s history,” he wrote. "In holding that same-sex marriage is encompassed by the traditional right to marry, the majority avoids the necessary constitutional analysis, concluding simply and broadly that the fundamental 'right to marry'—by everyone and to anyone—may not be infringed."