Waldman, Ari Ezra

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digitalcommons.nyls.eduFaculty Scholarship Other Publications2014Fourth Circuit Affirms Virginia’s Ban on GayMarriage Unconstitutional: An Analysis of theDissentAri Ezra WaldmanNew York Law SchoolFollow this and additional works at: https://digitalcommons.nyls.edu/fac_other_pubsThis Article is brought to you for free and open access by the Faculty Scholarship at DigitalCommons@NYLS. It has been accepted for inclusion inOther Publications by an authorized administrator of DigitalCommons@NYLS.Recommended CitationWaldman, Ari Ezra, "Fourth Circuit Affirms Virginia’s Ban on Gay Marriage Unconstitutional: An Analysis of the Dissent" (2014).Other Publications. 264.https://digitalcommons.nyls.edu/fac_other_pubs/264BY ARI EZRA WALDMANToday, the Richmond, Virginia-based Fourth Circuit affirmed a lower courtjudge's decision striking down Virginia's ban on same-sex marriage.When last we discussed this case, a three-judge panel was hearing oralargument and one judge, Paul V. Niemeyer (right), was using his timequestioning the pro-equality advocacy to spout particular offensiverhetoric.Not surprisingly, Judge Niemeyer is in the minority today, writing a lonedissenting opinion to the majority's affirmation that banning gays frommarrying denies them a fundamental right under the U.S. Constitution.That fundamental right — the right to marry — is denied to gay personswhen a state says that they cannot marry the person they love, that theycould be forced to deny the equality of their love and union (by beingrelegated to a civil union or worse) or could easily marry a stranger as longas 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 FourteenthAmendments by denying gays the fundamental right to marry, a right that the Supreme Court has affirmed andreaffirmed 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 themajority makes a logical jump. Sure, headmits, the right to marry is a fundamentalright and the Supreme Court has said asmuch many times. But the majority, JudgeNiemeyer protests, extends thatfundamental right to gays withoutacknowledging or explaining that the actualmarriages underlying all those SupremeCourt statements that the right to marry isfundamental were opposite-sex, man-woman marriages. To Judge Niemeyer,gays marrying is something "new"; itinvokes a "new right." This "new" thing isdifferent from the old, traditional thing. Itcan't be the same right. If indeed theparties were seeking the recognition ofa new fundamental right, the court had to go through a difficult process and the individuals seeking to marry wouldhave had a tough sell on their hands.At oral argument, Judge Niemeyer kept referring to gay relationships as "new" and "different." He other-izedthe gay community in ways we normally reserve to homophobic rants. The problem is that Judge Niemeyer is afederal appellate court judge who just wrote his rapid homophobia into a snide dissent. Luckily, it was only a dissent.But Judge Niemeyer's other-ing of the gay community and his insistence that gay marriage presents courts with aproposed "new right," is not just spiteful; it also bad law, having been rejected, most strikingly, when the SupremeCourt decided Lawrence v. Texas in 2003.Lawrence was about sodomy, not marriage. But the case overturned the odious Bowers v. Hardwick, a SupremeCourt decision that permitted states to criminalize gay sodomy, by rejecting the very "new right" jurisprudence JudgeNiemeyer seeks to resurrect today. In Bowers, which challenged the constitutionality of an anti-sodomy law that wasused to criminalize gay sex and used to justify discrimination against gays, Justice White framed the question thisway: Does the Constitution guarantee a right to gay sex?Of course that is not what we were asking forin Bowers. Rather, we asked the court torecognize a fundamental association right andthe inherent equality of all persons, gay orheterosexual. He wanted the pro-equality sideto sound as terrible as possible. Using JusticeWhite's language, it sounds as if we went tothe Supreme Court asking the justices to readinto the text of the Constitution a right to haveanal sex with someone of the same sex. Thatsounds hard to justify and it stacks the deckagainst.Lawrence explicitly rejected Justice White'snarrow formulation of the right at stake in theconstitutional 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 lookingat basic human rights. Anti-sodomy laws aimed at gay persons prevented gays from associating with whom theychoose, to love the way they choose, and to express themselves intimately. Nothing could be more fundamental andnothing 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 inthe 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. Thatright 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.

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

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

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