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Bostic v. Schaefer (4th Cir.)

Bostic v. Schaefer is a federal-court challenge to discriminatory marriage laws in Virginia that prohibit same-sex marriage.  In February 2014, the district court ruled that these laws “significantly interfere with a fundamental right” and violate the plaintiffs’ rights to due process and equal protection guaranteed by the Fourteenth Amendment.  The State Registrar of Vital Records and two local clerks filed an appeal with the United States Court of Appeals for the Fourth Circuit; Virginia’s Attorney General has refused to defend the state’s marriage prohibition, and filed a brief in the Fourth Circuit in support of the couples challenging it. 

On April 18, 2014, Constitutional Accountability Center and the Cato Institute jointly filed a friend of the court brief in the Fourth Circuit, urging the court of appeals to uphold the lower court’s decision.  Our brief demonstrates that the text and history of the Fourteenth Amendment guarantee equality under the law and require equality of rights for all classes of persons and groups, including gay men and lesbians.  The framers of the Fourteenth Amendment recognized the right to marry as a basic civil right of all persons. As our brief demonstrates, the Amendment’s sweeping guarantee of equality unambiguously applies to the plaintiffs in Bostic, and prohibits discriminatory marriage laws.

The Fourth Circuit heard oral argument in Bostic on May 13, 2014, and on July 29, 2014, affirmed the lower court’s ruling, as CAC had urged.  The panel’s 2-1 decision declares that “denying same-sex couples [the choice to marry] prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.”  With its decision in Bostic, the Fourth Circuit became the second appellate court to rule that state bans on same-sex marriage are unconstitutional, following the Tenth Circuit’s decisions in Kitchen v. Herbert and Bishop v. Smith.  

On October 6, 2014, the Supreme Court denied certiorari, thus allowing the 4th Circuit’s decision recognizing a constitutional right to same-sex marriage to stand, clearing the way for marriage equality in all of the states within that Circuit.