To survive a Fourteenth Amendment (US Constitution) challenge, a state law must have a legitimate, important, or a compelling governmental interest or reason for enacting a law depending on the level of scrutiny to be applied. In this challenge (to Virginia's ban on marriages of same-sex couples), the Fourth Circuit panel determined that the proper level of review is strict scrutiny because it involves a fundamental right -- marriage. That does not mean that the law automatically falls. It means that the state needs a compelling state interest and that the law is narrowly taylored/constructed to achieving that specific state interest.
One of the rationales that opponents of marriage equality use to defend marriage bans in court is the optimal childrearing argument. Basically, opponents of marriage equality contend that children develop better when reared/raised by their biological parents (mother and father) in a stable family unit (as opposed to children raised by same-sex parents). One of the major problems with that rationale is that the overwhelming amount of empirical data do not support the opponents' position on this issue. And, the Fourth Circuit panel did acknowledge that in the majority opinion. Judge Floyd stated in his opinion that the arguments made against this rationale by proponents of marriage equality were "extremely persuasive." Nevertheless, he stated that the rationale (governmental interest) failed for two other reasons.
From the opinion:
First, under heightened scrutiny, states cannot support a law using “overbroad generalizations about the different talents, capacities, or preferences of” the groups in question. United States v. Virginia, 518 U.S. 515, 533-34 (1996) (rejecting “inherent differences” between men and women as a justification for excluding all women from a traditionally all-male military college); see also Stanley v. Illinois, 405 U.S. 645, 656-58 (1972) (holding that a state could not presume that unmarried fathers were unfit parents). The Proponents’ statements regarding same-sex couples’ parenting ability certainly qualify as overbroad generalizations. Second, as we explain above, strict scrutiny requires congruity between a law’s means and its end. This congruity is absent here. There is absolutely no reason to suspect that prohibiting same-sex couples from marrying and refusing to recognize their out-of-state marriages will cause same-sex couples to raise fewer children or impel married opposite-sex couples to raise more children. The Virginia Marriage Laws therefore do not further Virginia’s interest in channeling children into optimal families, even if we were to accept the dubious proposition that same-sex couples are less capable parents. Because the Proponents’ arguments are based on overbroad generalizations about same-sex parents, and because there is no link between banning same-sex marriage and promoting optimal childrearing, this aim cannot support the Virginia Marriage Laws.
While I believe we are on strong footing with regard to gay parenting because of empirical data and science, I'm still glad the court added the two other reasons that this rationale failed. I'm not sure if the first reason ("overbroad generalization") would work with rational basis review, but I think the second one would if we needed it to. There is no connection between denying same-sex couples the right to marry and how many children are raised by their biological parents in stable home environments. That link is irrational. I think this part of the opinion will help when/if we get to the SCOTUS.
And, Justice Ginsburg made news this week when she stated that she did not think that the SCOTUS would "duck" the marriage equality issue. She stated that she believed it would be ruled on by June, 2016 (or before). You may recall that Justice Ginsburg voted with the majority in the Windsor decision, striking down Section 3 of the Defense Of Marriage Act. And, she also voted with the majority in the Perry (Proposition 8) decision that the proponents of Proposition 8 did not have Article III standing, which left Judge Walker's ruling intact and marriage equality returned to California.
From The New Civil Rights Movement:
Ruth Bader Ginsburg says the Supreme Court will not "duck" same-sex marriage. The 81-year old Associate Justice (all Supreme Court Justices are technically Associate Justices, except for the Chief Justice) told the AP today that she expects the Court to take a case and decide it no later than June of 2016, or possibly earlier. She did not specify which case, although it's assumed it will be one (or several, possibly) of the many dozen making their way through the nation's court system now.
The AP reports that Ginsburg "said attitudes have changed swiftly in favor of the right of same-sex couples to marry."
Jean Podrasky, an LGBT activist, the cousin of Chief Justice John Roberts, and an occasional contributor to The New Civil Rights Movement, last year on these pages wrote of Ginsburg's siding with the majority to "toss out" the Prop 8 case on standing, allowing the lower court's ruling to stand.
"I truly believe that Justice Ruth Bader Ginsburg knew exactly what she was doing by siding with throwing the case out on standing," Podrasky wrote. "I think her idea was for us to slowly win over public approval before making same-sex marriage legal nationwide, to allow us to win state by state through the legislative process or the ballot box, and later to have the Supreme Court rule on this again in a couple of years."
Those "couple of years" seem to be coming up quickly.
I totally agree with Jean Podrasky.
Note: Other than the quoted part of the Fourth Circuit opinion and The New Civil Rights Movement quote, the above is my opinion. And, while I have done quite a bit of studying and reading on these issues (marriage equality litigation), I am not a lawyer nor do I play one on teevee. Any corrections by those who know more than I is appreciated.