Ari Ezra Waldman | Gay Marriage | Law - Gay, LGBT | News | Virginia

Fourth Circuit Affirms Virginia's Ban on Gay Marriage Unconstitutional: An Analysis of the Dissent


NiemeyerToday, the Richmond, Virginia-based Fourth Circuit affirmed a lower court judge's decision striking down Virginia's ban on same-sex marriage. When last we discussed this case, a three-judge panel was hearing oral argument and one judge, Paul V. Niemeyer (right), was using his time questioning the pro-equality advocacy to spout particular offensive rhetoric.

Not surprisingly, Judge Niemeyer is in the minority today, writing a lone dissenting opinion to the majority's affirmation that banning gays from marrying denies them a fundamental right under the U.S. Constitution. That fundamental right -- the right to marry -- is denied to gay persons when a state says that they cannot marry the person they love, that they could be forced to deny the equality of their love and union (by being relegated to a civil union or worse) or could easily marry a stranger as long as that stranger is of a different gender.

The majority opinion sounds pretty familiar: the appellants have standing, Baker v. Nelson does not foreclose a federal decision on the merits, and Virginia's ban violates the Fifth and Fourteenth Amendments by denying gays the fundamental right to marry, a right that the Supreme Court has affirmed and reaffirmed more than 15 times.

We have covered all those matters before. AFTER THE JUMP, I want to spend a few column inches on the dissent, a diatribe that is dimissive, at best, and hateful, at worst.

Judge Niemeyer's central point is that the majority makes a logical jump. Sure, he admits, the right to marry is a fundamental right and the Supreme Court has said as much many times. But the majority, Judge Niemeyer protests, extends that fundamental right to gays without acknowledging or explaining that the actual marriages underlying all those Supreme Court statements that the right to marry is fundamental were opposite-sex, man-woman marriages. To Judge Niemeyer, gays marrying is something "new"; it invokes a "new right." This "new" thing is different from the old, traditional thing. It can't be the same right. If indeed the parties were seeking the recognition of a new fundamental right, the court had to go through a difficult process and the individuals seeking to marry would have had a tough sell on their hands.

At oral argument, Judge Niemeyer kept referring to gay relationships as "new" and "different." He other-ized the gay community in ways we normally reserve to homophobic rants. The problem is that Judge Niemeyer is a federal appellate court judge who just wrote his rapid homophobia into a snide dissent. Luckily, it was only a dissent.

VirginiaBut Judge Niemeyer's other-ing of the gay community and his insistence that gay marriage presents courts with a proposed "new right," is not just spiteful; it also bad law, having been rejected, most strikingly, when the Supreme Court decided Lawrence v. Texas in 2003.

Lawrence was about sodomy, not marriage. But the case overturned the odious Bowers v. Hardwick, a Supreme Court decision that permitted states to criminalize gay sodomy, by rejecting the very "new right" jurisprudence Judge Niemeyer seeks to resurrect today. In Bowers, which challenged the constitutionality of an anti-sodomy law that was used to criminalize gay sex and used to justify discrimination against gays, Justice White framed the question this way: Does the Constitution guarantee a right to gay sex?

Of course that is not what we were asking for in Bowers. Rather, we asked the court to recognize a fundamental association right and the inherent equality of all persons, gay or heterosexual. He wanted the pro-equality side to sound as terrible as possible. Using Justice White's language, it sounds as if we went to the Supreme Court asking the justices to read into the text of the Constitution a right to have anal sex with someone of the same sex. That sounds hard to justify and it stacks the deck against.

Lawrence explicitly rejected Justice White's narrow formulation of the right at stake in the constitutional challenge to anti-sodomy laws. In Lawrence, Justice Kennedy stated that the right is broader than just sex, which was a pretty crass way of looking at basic human rights. Anti-sodomy laws aimed at gay persons prevented gays from associating with whom they choose, to love the way they choose, and to express themselves intimately. Nothing could be more fundamental and nothing could be more outside the regulatory (actually, criminal) power of the state.

Judge Niemeyer is trying to frame the question in a similar way to Bowers and thereby deny us victory in court and in the court of public opinion. He is trying to frame the marriage question as whether there is a constitutional right to get "gay married" just like Justice White framed the sodomy question as whether there is a constitutional right to have "gay anal sex."

They are both wrong. There is a constitutional right to marry that is being denied to gays for no good reason. That right extends to all Americans regardless of sexual orientation.

But even though Lawrence explicitly rejected the way Justice White formed the question in Bowers, Judge Niemeyer, and the countless backward looking conservatives in the federal judiciary, have no qualms about bringing it back. Thankfully, at least five justices on the Supreme Court are going to laugh Judge Niemeyer out of the courtroom.


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Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently pursuing his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.

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  1. Ari, what did you make of Niemyer's bizarre references to the importance of man-woman marriage and their biological children in creating a "stable political unit"? In addition to its defining childless couples and adoptive parents out of this "political unit," what was the point of that phrasing, and what possible relevance can a political unit have to the fundamental right of marriage, regardless of one's choice of partner?

    "Only the union of a man and a woman has the capacity to produce children and thus to carry on the species. And more importantly, only such a union creates a biological family unit that also gives rise to a traditionally stable political unit."

    The procreation argument I get, even if I disagree with it (as have 28 rulings). But I don't understand this "stable political unit" nonsense. Is it a tea-party or conservative dog whistle of some kind?

    Posted by: Thom Watson | Jul 28, 2014 4:09:07 PM

  2. I stopped reading the dissent when the bigoted judge claimed that if society allowed same-sex marriage we would also have to authorize polygamy and incestuous marriages. Yeah, 19 states and 16 countries have already proven him wrong. He should be removed from the bench for using a non-provable slippery slope argument to justify discrimination. The fact that he’s qualified to be a federal judge is appalling.

    Posted by: David in the O.C. | Jul 28, 2014 4:17:57 PM

  3. NC's Attorney General Roy Cooper said the state will no longer defend Amendment One - our s/s marriage ban. He said it's time to move on and do the right thing. (We are in the same Circuit as VA).

    Posted by: michaelr | Jul 28, 2014 4:24:29 PM

  4. Yes, Ari, let's hope it is five Supreme Court justices doing the laughing and not only four.

    Posted by: CAnaive | Jul 28, 2014 4:27:53 PM

  5. Good post, Ari!

    Posted by: Josh | Jul 28, 2014 4:29:46 PM

  6. There's not much you can do when a judge-for-life ignores the law. Scalia does it all the time.

    Posted by: Wisebear | Jul 28, 2014 4:30:57 PM

  7. I actually have some hope that the eventual Supreme Court win will come down 6-3. I think Roberts might want to be on the right side of history.

    Posted by: Wisebear | Jul 28, 2014 4:34:15 PM

  8. Ari - will the remaining defendants (two county clerks, it appears) have standing before the Supremes?

    Posted by: mike moore | Jul 28, 2014 4:36:34 PM

  9. I know Judge Niemeyer well and he is not hateful or spiteful. I think he is wrong in this case, but not every jurisprudential dispute is hate. He takes a conservative view whether the topic is a boring commerce one or gay marriage. I'm disappointed that he included reference to polygamy and father-daughter marriage, which is inflammatory and unnecessary to make his point. But I would also note that he concluded this opinion by saying that "there are rational reasons FOR" approving gay marriage. So I think it's fair to criticize his legal analysis but I don't think his dissent amounts to hatefulness, and we need to be adult enough to say "I disagree with your analysis" without saying "Because you disagree with me, you are spiteful and hateful." He's also been decent to me personally, which colors my opinion.

    Posted by: Anonymous... | Jul 28, 2014 5:28:58 PM

  10. Good question @Mike Moore! I wondered that myself. And why it took 19 pages to "header" the 4th Circuit VA decision. There were that many additional briefs?

    I'm thinking the 2 Co Clerks and the State Registrar of Vital Records WILL have standing as they're named defendants in the original or amended complaints. They're being sued on behalf of the state and will be able to ask for en banc review or for direct appeal to the Supremes.

    Whether the Supremes grant cert is, as always, a question of if 4 judges vote to do so. Remember that they DID grant cert in the Prop 8 case and ultimately found that the plaintiffs [the proposers of the initiative] DID NOT have standing, but that was because they were NOT agents of the state. The VA 3 are.

    However, when PA decided NOT to appeal the Supremes didn't let the "crazy lady" clerk appeal. Ain't Same Sex Marriage an excellent course in our legal system and civics?

    I'm wondering if Niemeyer has that look on his face for the same reason we always say another famous Virginian is depicted that way: because his dentures don't fit correctly [and were made out of Holly Wood, Hippopotamus tusk/bone, etc]. He has that same George Washington "pained smile". Maybe it is just because he knows he's on the "wrong side of history."

    Posted by: ben~andy | Jul 28, 2014 5:31:07 PM

  11. I have not read Niemeyer's dissent, but I agree with Ari: casting the question of same-sex marriage (ssm) as somehow intrinsically different from other-sex marriage (osm) denies basic equality and "otherizes" us. As a form of social ostracism, such talk is hateful. In that context, his comment that he sees "rational reasons FOR" approving of ssm just strikes me as "see how fair I am" posing.

    Posted by: Chuck Mielke | Jul 28, 2014 5:50:18 PM

  12. Polygamous marriage is already legal in muslim countries(albeit one gender-sided) and is as old as sand so there is nothing new there.

    The incestuous argument is an interesting one and one that should not be dismissed so easily. It's currently a 'taboo' and illegal to marry your biological mom, dad, son, daughter but for how long? The main argument against it is the high incidence of genetic malformation in offsprings. But as technology gets better, siblings can be screened. Also brother-brother coupling can't pass on genes so that argument isn't true for same-sex siblings.

    Posted by: bossmeoff | Jul 28, 2014 5:59:21 PM

  13. @Anonymous: We only have Niemyer's words on which to make a judgment, and he doesn't come across as particularly respectful to gay people or same-sex couples, either in his dissent as well as in his questions and comments during oral arguments. Frankly, he comes across as dismissive not just of same-sex couples, but of childless couples and adoptive parents as well, given that he states that only opposite-sex couples, married, and forming a "biological" unit with their children, are capable of forming a "stable political unit," which he seems to suggest is an ideal, whatever the hell that term even means.

    And even you note that citing incest and polygamy was both "inflammatory" AND "unnecessary." If unnecessary, then why include it except to express one's distaste and lack of respect for loving same-sex relationships?

    Posted by: Thom Watson | Jul 28, 2014 6:18:37 PM

  14. "The main argument against it is the high incidence of genetic malformation in offsprings."

    The main argument, perhaps, though certainly not the only one. There are reasonable arguments as well that 1) marriage exists to create legal kinships; father-daughter, brother-sister, mother-son, father-son, mother-daughter, brother-brother, sister-sister, already have legal kinship bonds; 2) many incestuous relationships, similar to many (though not all) polygamous unions, inherently are based on uneven power dynamics and thereby might raise questions about uncoerced consent. I'm not putting these out to suggest that I agree with them, but to point out that there have always been more than just genetic concerns about incest, concerns which may possibly make restrictions of such relationships more akin to restrictions on age in marriage than on choice of partner.

    Posted by: Thom Watson | Jul 28, 2014 6:32:03 PM

  15. "Thankfully, at least five justices on the Supreme Court are going to laugh Judge Niemeyer out of the courtroom"

    ...provided the elderly ones remain in good health.

    Posted by: Randy | Jul 28, 2014 6:33:14 PM

  16. This just makes the WIN all the sweeter.

    Posted by: David | Jul 28, 2014 6:48:01 PM

  17. So I teach a constitutional law class on sexuality at a law school and I've steadily watched my syllabus moot itself --- Don't Ask, Don't Tell, DOMA, and now (though still in progress) marriage. I keep having to change what I teach on, but it seems like pretty soon I'll be teaching a history class, which I guess is a nice form of unemployment.

    Posted by: Me | Jul 28, 2014 7:07:29 PM

  18. 73 years old

    Posted by: Bob K | Jul 28, 2014 7:27:08 PM

  19. One important aspect Ari didn't mention: the Fourth Circuit court until recently had a reputation of being perhaps the most conservative of all the circuit courts. The difference is that President Obama was able to appoint new judges and has helped change the court's composition, so its apparent conservative bias appears to be a thing of the past.

    Posted by: Bill | Jul 28, 2014 8:11:39 PM

  20. @Bob K, I assume that is a reference to Judge Niemeyer rather than your dating profile?

    Posted by: ben~andy | Jul 28, 2014 9:29:13 PM

  21. Anonymous and thom Watson: there is yet a bother reasonable argument againstincestuous marriages. NO ONE IS ASKING FOR THEM. NOT HERE, NOT IN ANY STATE OR NATION THAT HAS MARRIAGE EQUALITY, NOT IN ANY STATE OR NATION THAT DOESNT.

    There are no legions of brother bangers and sis shaggers. If and When such legions appear, they will make their case, and the heterosexual majority will make a decision about it,

    The only people who say we HAVE to permit incestuous marriages are our opponents. NO one else.

    Posted by: Ben in Oakland | Jul 28, 2014 10:32:23 PM

  22. @ANONYMOUS: we need to be adult enough to say "I disagree with your analysis" without saying "Because you disagree with me, you are spiteful and hateful."

    Strawman. No one said he's hateful because he disagrees. He's hateful because he resorts to transparent and illegal double standards to privilege his own majority and penalize a minority. By your friend's logic, ANY group can be divorced of ANY right simply by declaring it a different, speculative right when exercised by that group. People have a right to assembly, but no court has ever recognized the separate and novel right to left-handed-person assembly. So it's perfectly legal for states to outlaw people from engaging in lefty assembly, right?

    The fallacy here will be obvious to any judge of your friend's seniority. He employs it anyway because it rationalizes the conclusion he wants. But knowingly using a fallacy to impose legal inequality is monstrous.

    Posted by: JJ | Jul 28, 2014 10:46:19 PM

  23. Judge Niemeyer's reasoning would have been equally valid in defending Virginia against Loving. Prior to the Supreme Court's diktat, there was no right to marry a person of a different race in the Commonwealth of Virginia.
    Virginia did not object to blue-eyed people marrying brown-eyed ones; this did not stop them from preventing white skinned people from marrying dark skinned ones.
    Which differences merit distinction and which are invidious and unconstitutional is ultimately a matter for the Courts in applying the doctrine of equal protection.
    My husband and I disagree with Niemeyer's belief that gender is a valid reason for turning a difference into a distinction, but that doesn't invalidate his observation that a difference exists.

    Posted by: Rich-SD | Jul 29, 2014 3:29:39 AM

  24. @anonymous. Language can hurt. No one knows this better than lawyers and judges. It is our stock in trade. We know precisely how to use a phrase that is hurtful, we know how to use it, and we know when to use it. We use it when we ant to do something more than merely set aside another person's argument. We use it when we want to get personal, and hurl an insult in the most obsequious fashion possible. Judge Niemeyer intended to insult gay Americans. It was not some throw away line. It was intended to demean our relationships. Now he may be perfectly civil in social situations, and he may not actively engage in hate speech at work, but he knew precisely what he was doing in this dissent, and it was -- as he intended -- hateful.

    Posted by: DC Insider | Jul 29, 2014 12:26:56 PM

  25. I often wonder about the politics of decisions like this. How can the lower courts' rulings be individually unanimous, but the second you get up to the circuit court, the rulings go 2-1? We have now seen this 4 times in 3 circuits. It is almost enough to make one believe in conspiracies - especially when the dissents come out sounding so asinine.

    Posted by: Nathaniel | Jul 29, 2014 12:34:43 PM

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