Virginia's and Florida's Democratic Marriage Referendums Declined Protection in Federal Court Rulings

Several states in the southeast section of the United States no longer have clear laws and regulations on marriage in light of a recent federal circuit ruling.  In separate actions, federal judges struck down constitutional marriage amendments in Virginia and Florida.  The result of these rulings is that marriage is being challenged in every State that has not already redefined it with marriage expansion for same-sex couples.

In the case of Bostic v. Schaefer, 2014 BL 207107, 4th Cir., No. 14-1167, a group of same-sex couples in Virginia filed suit in federal court to challenge Virginia's voter-approved constitutional amendment affirming marriage. Alliance Defending Freedom attorneys represent the State in that case, and the Prince William County Clerk of Court Michéle B. McQuigg, whom the district court allowed to intervene in defense of the State's marriage laws because she is tasked with issuing marriage licenses in that county.  A three judge panel of the Fourth Circuit decided on July 28, 2014 that Virginia's marriage law, which was approved by a 2006 amendment supported by 57% of Virginia voters as defining marriage as that legal relationship between one man and one woman violates the fundamental right to marry.   For more information on the defense of the case see www.ADFmedia.org. 

This federal ruling infringes on Virginia's state regulatory powers as outlined in "Marriage, State Domestic Relations Power, and Family Strength" at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2427462.  The Fourth Circuit,  nonetheless, becomes the second federal appellate court to strike down State marriage laws, following the Tenth Circuit's decisions invalidating similar laws in Utah and Oklahoma. 

In Florida, in a ruling released late on Friday, July 25, 2014, a Miami-Dade Circuit Judge declared Florida's marriage amendment unconstitutional.  That State's marriage law, passed in 2008 by 62 percent of Floridians, was effectively struck down by the ruling.  The opinion stated that the State law "serves only to hurt, to discriminate, to deprive same-sex couples and their families of equal dignity, to label and treat them as second-class citizens, and to deem them unworthy of participation in one of the fundamental institutions of our society."  State marriage laws, however, do not work to demean individuals, but to uphold and strengthen families.  The opinion cited the U.S. Supreme Court decision of Windsor v. U.S. from last summer that nullified a portion of the federal Defense of Marriage Act, but conceded that States should have the right to regulate marriage.  To learn more about that Supreme Court case read "Federalism or Extreme Makeover of State Domestic Regulations Power? The Rules and Rhetoric of Windsor (and Perry), at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462093.  Indeed, these recent federal cases illustrate that the rhetoric in Windsor has now become the rule in Virginia and Florida.

Two very salient points were made by Fourth Circuit dissenting Judge Paul Niemeyer in the Bostic opinion in Virginia.  First, he pointed out that the majority failed to explain how their ruling would preclude a father marrying his daughter, or someone marrying multiple partners.  Secondly, his dissenting opinion argued that marriage regulation and definition should be left to the states, and not dictated by federal courts.  That position is clearly outlined in the twohttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=2427462 articles http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462093 referenced here in this post.  Niemeyer writes, "The U.S. Constitution does not, in my judgment, restrict the States' policy choices on this issue. If given the choice, some States will surely recognize same-sex marriage and some will surely not. But that is, to be sure, the beauty of federalism."  And federalism is explained and applied to marriage in the piece at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462093.   

Family restoration is not buttressed by further expansion of marriage by federal power because that effort steals and destroys State authority to strengthen marriage, while simultaneously deconstructing marriage as a cornerstone institution of any strong society.  Indeed, federal expansion of marriage weakens States, families, and communities.  Same-sex marriage expansion is the proliferation of domestic partnerships by federal fiat.  So "How Will the Proliferation of Domestic Partnerships Affect Marriage"?  Those answers can be found at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=269418.