PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-1167

TIMOTHY B. BOSTIC; TONY C. LONDON; CAROL SCHALL; MARY 

TOWNLEY,

Plaintiffs − Appellees,

JOANNE HARRIS; JESSICA DUFF; CHRISTY BERGHOFF; VICTORIA 

KIDD, on behalf of themselves and all others similarly 

situated,

Intervenors,

v.

GEORGE E. SCHAEFER, III, in his official capacity as the 

Clerk of Court for Norfolk Circuit Court,

Defendant – Appellant,

and

JANET M. RAINEY, in her official capacity as State Registrar 

of Vital Records; ROBERT F. MCDONNELL, in his official

capacity as Governor of Virginia; KENNETH T. CUCCINELLI, II, 

in his official capacity as Attorney General of Virginia,

Defendants,

MICHÈLE MCQUIGG,

Intervenor/Defendant.

------------------------------------

DAVID A. ROBINSON; ALAN J. HAWKINS; JASON S. CARROLL; NORTH 

CAROLINA VALUES COALITION; LIBERTY, LIFE, AND LAW 

FOUNDATION; SOCIAL SCIENCE PROFESSORS; FAMILY RESEARCH 

COUNCIL; VIRGINIA CATHOLIC CONFERENCE, LLC; CENTER FOR 

CONSTITUTIONAL JURISPRUDENCE; STATE OF WEST VIRGINIA; 
2

INSTITUTE FOR MARRIAGE AND PUBLIC POLICY; HELEN M. ALVARE; 

STATE OF INDIANA; STATE OF ALABAMA; STATE OF ALASKA; STATE 

OF ARIZONA; STATE OF COLORADO; STATE OF IDAHO; STATE OF 

LOUISIANA; STATE OF MONTANA; STATE OF NEBRASKA; STATE OF 

OKLAHOMA; STATE OF SOUTH CAROLINA; STATE OF SOUTH DAKOTA; 

STATE OF UTAH; STATE OF WYOMING; WALLBUILDERS, LLC; LIBERTY 

COUNSEL; AMERICAN COLLEGE OF PEDIATRICIANS; SCHOLARS OF

HISTORY AND RELATED DISCIPLINES; AMERICAN LEADERSHIP FUND; 

ROBERT P. GEORGE; SHERIF GIRGIS; RYAN T. ANDERSON; PAUL 

MCHUGH; UNITED STATES CONFERENCE OF CATHOLIC BISHOPS;

NATIONAL ASSOCIATION OF EVANGELICALS; CHURCH OF JESUS CHRIST 

OF LATTER−DAY SAINTS; THE ETHICS & RELIGIOUS LIBERTY 

COMMISSION OF THE SOUTHERN BAPTIST CONVENTION; LUTHERAN

CHURCH−MISSOURI SYNOD; THE BECKET FUND FOR RELIGIOUS 

LIBERTY; EAGLE FORUM EDUCATION AND LEGAL DEFENSE FUND; DAVID 

BOYLE; ROBERT OSCAR LOPEZ; CONCERNED WOMEN FOR AMERICA; THE 

FAMILY FOUNDATION OF VIRGINIA,

Amici Supporting Appellant,

CONSTITUTIONAL LAW SCHOLARS; ASHUTOSH BHAGWAT; LEE 

BOLLINGER; ERWIN CHEMERINSKY; WALTER DELLINGER; MICHAEL C. 

DORF; LEE EPSTEIN; DANIEL FARBER; BARRY FRIEDMAN; MICHAEL

JAY GERHARDT, Professor; DEBORAH HELLMAN; JOHN CALVIN 

JEFFRIES, JR.; LAWRENCE LESSIG; WILLIAM MARSHALL; FRANK 

MICHELMAN; JANE S. SCHACTER; CHRISTOPHER H. SCHROEDER;

SUZANNA SHERRY; GEOFFREY R. STONE; DAVID STRAUSS; LAURENCE 

H. TRIBE, Professor; WILLIAM VAN ALSTYNE; OUTSERVE−SLDN; THE 

AMERICAN MILITARY PARTNER ASSOCIATION; THE AMERICAN

SOCIOLOGICAL ASSOCIATION; VIRGINIA CONSTITUTIONAL LAW 

PROFESSORS; AMERICAN PSYCHOLOGICAL ASSOCIATION; THE AMERICAN 

ACADEMY OF PEDIATRICS; AMERICAN PSYCHIATRIC ASSOCIATION; 

NATIONAL ASSOCIATION OF SOCIAL WORKERS; VIRGINIA 

PSYCHOLOGICAL ASSOCIATION; EQUALITY NC; SOUTH CAROLINA 

QUALITY COALITION; CHANTELLE FISHER−BORNE; MARCIE 

FISHER−BORNE; CRYSTAL HENDRIX; LEIGH SMITH; SHANA CARIGNAN; 

MEGAN PARKER; TERRI BECK; LESLIE ZANAGLIO; LEE KNIGHT 

CAFFERY; DANA DRAA; SHAWN LONG; CRAIG JOHNSON; ESMERALDA 

MEJIA; CHRISTINA GINTER−MEJIA; CATO INSTITUTE; 

CONSTITUTIONAL ACCOUNTABILITY CENTER; HISTORIANS OF 

MARRIAGE; PETER W. BARDAGLIO; NORMA BASCH; STEPHANIE COONTZ;

NANCY F. COTT; TOBY L. DITZ; ARIELA R. DUBLER; LAURA F. 

EDWARDS; SARAH BARRINGER GORDON; MICHAEL GROSSBERG; HENDRIK 

HARTOG; ELLEN HERMAN; MARTHA HODES; LINDA K. KERBER; ALICE

KESSLER−HARRIS; ELAINE TYLER MAY; SERENA MAYERI; STEVEN 

MINTZ; ELIZABETH PLECK; CAROLE SHAMMAS; MARY L. SHANLEY; AMY 

DRU STANLEY; BARBARA WELKE; PARENTS, FAMILIES AND FRIENDS OF 
3

LESBIANS AND GAYS, INC.; KERRY ABRAMS, Albert Clark Tate, 

Jr. Professor of Law, University of Virginia School of Law; 

VIVIAN HAMILTON, Professor of Law, William and Mary; 

MEREDITH HARBACH, Professor of Law, University of Richmond; 

JOAN HEIFETZ HOLLINGER, John and Elizabeth Boalt Lecturer in 

Residence, University of California, Berkeley School of Law; 

COURTNEY G. JOSLIN, Professor of Law, University of 

California, Davis School of Law; NAACP LEGAL DEFENSE AND 

EDUCATION FUND, INC.; NATIONAL ASSOCIATION FOR THE 

ADVANCEMENT OF COLORED PEOPLE; HOWARD UNIVERSITY SCHOOL OF 

LAW CIVIL RIGHTS CLINIC; FAMILY EQUALITY COUNCIL; COLAGE; 

GLMA: HEALTH PROFESSIONALS ADVANCING LGBT EQUALITY; WILLIAM 

N. ESKRIDGE, JR.; REBECCA L. BROWN; DANIEL A. FARBER; 

MICHAEL GERHARDT; JACK KNIGHT; ANDREW KOPPELMAN; MELISSA 

LAMB SAUNDERS; NEIL S. SIEGEL; JANA B. SINGER; HISTORIANS OF 

ANTI−GAY DISCRIMINATION; ANTI−DEFAMATION LEAGUE; AMERICANS 

UNITED FOR SEPARATION OF CHURCH AND STATE; BEND THE ARC: A 

JEWISH PARTNERSHIP FOR JUSTICE; HADASSAH, THE WOMEN'S 

ZIONIST ORGANIZATION OF AMERICA; HINDU AMERICAN FOUNDATION; 

THE INTERFAITH ALLIANCE FOUNDATION; JAPANESE AMERICAN 

CITIZENS LEAGUE; JEWISH SOCIAL POLICY ACTION NETWORK; 

KESHET; METROPOLITAN COMMUNITY CHURCHES; MORE LIGHT 

PRESBYTERIANS; THE NATIONAL COUNCIL OF JEWISH WOMEN; 

NEHIRIM; PEOPLE FOR THE AMERICAN WAY FOUNDATION; 

PRESBYTERIAN WELCOME; RECONCILINGWORKS: LUTHERANS FOR FULL

PARTICIPATION; RELIGIOUS INSTITUTE, INC.; SIKH AMERICAN 

LEGAL DEFENSE AND EDUCATION FUND; SOCIETY FOR HUMANISTIC 

JUDAISM; T'RUAH: THE RABBINIC CALL FOR HUMAN RIGHTS; WOMEN'S

LEAGUE FOR CONSERVATIVE JUDAISM; COLUMBIA LAW SCHOOL 

SEXUALITY AND GENDER LAW CLINIC; BISHOPS OF THE EPISCOPAL 

CHURCH IN VIRGINIA; CENTRAL ATLANTIC CONFERENCE OF THE

UNITED CHURCH OF CHRIST; CENTRAL CONFERENCE OF AMERICAN 

RABBIS; MORMONS FOR EQUALITY; RECONSTRUCTIONIST RABBINICAL 

ASSOCIATION; RECONSTRUCTIONIST RABBINICAL COLLEGE AND JEWISH 

RECONSTRUCTIONIST COMMUNITIES; UNION FOR REFORM JUDAISM; THE 

UNITARIAN UNIVERSALIST ASSOCIATION; AFFIRMATION; COVENANT 

NETWORK OF PRESBYTERIANS; METHODIST FEDERATION FOR SOCIAL 

ACTION; MORE LIGHT PRESBYTERIANS; PRESBYTERIAN WELCOME;

RECONCILING MINISTRIES NETWORK; RECONCILINGWORKS: LUTHERANS 

FOR FULL PARTICIPATION; RELIGIOUS INSTITUTE, INC.; WOMEN OF 

REFORM JUDAISM; 28 EMPLOYERS AND ORGANIZATIONS REPRESENTING 

EMPLOYERS; COMMONWEALTH OF MASSACHUSETTS; STATE OF 

CALIFORNIA; STATE OF CONNECTICUT; DISTRICT OF COLUMBIA; 

STATE OF ILLINOIS; STATE OF IOWA; STATE OF MAINE; STATE OF 

MARYLAND; STATE OF NEW HAMPSHIRE; STATE OF NEW MEXICO; STATE 

OF NEW YORK; STATE OF OREGON; STATE OF VERMONT; STATE OF 

WASHINGTON; GARY J. GATES; NATIONAL AND WESTERN STATES 
4

WOMEN'S RIGHTS ORGANIZATIONS; VIRGINIA CHAPTER OF THE 

AMERICAN ACADEMY OF MATRIMONIAL LAWYERS; THE NATIONAL 

WOMEN'S LAW CENTER; EQUAL RIGHTS ADVOCATES; LEGAL MOMENTUM; 

NATIONAL ASSOCIATION OF WOMEN LAWYERS; NATIONAL PARTNERSHIP 

FOR WOMEN & FAMILIES; SOUTHWEST WOMEN'S LAW CENTER; WOMEN'S 

LAW PROJECT; PROFESSORS OF LAW ASSOCIATED WITH THE WILLIAMS 

INSTITUTE; BAY AREA LAWYERS FOR INDIVIDUAL FREEDOM;

LEADERSHIP CONFERENCE ON CIVIL AND HUMAN RIGHTS; PUBLIC 

INTEREST ORGANIZATIONS; BAR ASSOCIATIONS; FAMILY LAW AND 

CONFLICT OF LAWS PROFESSORS; GAY AND LESBIAN ADVOCATES AND 

DEFENDERS; PEOPLE OF FAITH FOR EQUALITY IN VIRGINIA; 

CELEBRATION CENTER FOR SPIRITUAL LIVING; CLARENDON 

PRESBYTERIAN CHURCH; COMMONWEALTH BAPTIST CHURCH;

CONGREGATION OR AMI; HOPE UNITED CHURCH OF CHRIST; LITTLE 

RIVER UCC; METROPOLITAN COMMUNITY CHURCH OF NORTHERN 

VIRGINIA; MT. VERNON UNITARIAN CHURCH; ST. JAMES UCC,; ST. 

JOHN'S UCC; NEW LIFE METROPOLITAN COMMUNITY CHURCH; 

UNITARIAN UNIVERSALIST FELLOWSHIP OF THE PENINSULA;

UNITARIAN UNIVERSALIST CONGREGATION OF STERLING; UNITED 

CHURCH OF CHRIST OF FREDERICKSBURG; UNITARIAN UNIVERSALIST 

CHURCH OF LOUDOUN; ANDREW MERTZ; REV. MARIE HULM ADAM; REV. 

MARTY ANDERSON; REV ROBIN ANDERSON; REV. VERNE ARENS; RABBI 

LIA BASS; REV. JOSEPH G. BEATTIE; REV. SUE BROWNING; REV. 

JIM BUNDY; REV. MARK BYRD; REV. STEVEN C. CLUNN; REV. DR. 

JOHN COPERHAVER; RABBI GARY CREDITOR; REV. DAVID ENSIGN; 

REV. HENRY FAIRMAN; RABBI JESSE GALLOP; REV. TOM 

GERSTENLAUER; REV. ROBIN H. GORSLINE; REV. TRISH HALL; REV. 

WARREN HAMMONDS; REV. JON HEASLET; REV. DOUGLAS HODGES; REV. 

PHYLLIS HUBBELL; REV. STEPHEN G. HYDE; REV. JANET JAMES; 

REV. JOHN MANWELL; REV. JAMES W. MCNEAL; REV. MARC BOSWELL; 

REV. ANDREW CLIVE MILLARD; REV. DR. MELANIE MILLER; REV. 

AMBER NEUROTH; REV. JAMES PAPILE; REV. LINDA OLSON PEEBLES; 

REV. DON PRANGE; RABBI MICHAEL RAGOZIN; RABBI BEN ROMER; 

REV. JENNIFER RYU; REV. ANYA SAMMLER−MICHAEL; REV. AMY

SCHWARTZMAN; REV. DANNY SPEARS; REV. MARK SURIANO; REV. ROB 

VAUGHN; REV. DANIEL VELEZ−RIVERA; REV. KATE R. WALKER; REV. 

TERRYE WILLIAMS; REV. DR. KAREN−MARIE YUST,

Amici Supporting Appellees.
5

No. 14-1169

TIMOTHY B. BOSTIC; TONY C. LONDON; CAROL SCHALL; MARY 

TOWNLEY,

Plaintiffs − Appellees,

JOANNE HARRIS; JESSICA DUFF; CHRISTY BERGHOFF; VICTORIA 

KIDD, on behalf of themselves and all others similarly 

situated,

Intervenors,

v.

JANET M. RAINEY, in her official capacity as State Registrar 

of Vital Records,

Defendant – Appellant,

and

GEORGE E. SCHAEFER, III, in his official capacity as the 

Clerk of Court for Norfolk Circuit Court; ROBERT F.

MCDONNELL, in his official capacity as Governor of Virginia; 

KENNETH T. CUCCINELLI, II, in his official capacity as

Attorney General of Virginia,

Defendants,

MICHÈLE MCQUIGG,

Intervenor/Defendant.

------------------------------------

DAVID A. ROBINSON; ALAN J. HAWKINS; JASON S. CARROLL; NORTH 

CAROLINA VALUES COALITION; LIBERTY, LIFE, AND LAW 

FOUNDATION; SOCIAL SCIENCE PROFESSORS; FAMILY RESEARCH 

COUNCIL; VIRGINIA CATHOLIC CONFERENCE, LLC; CENTER FOR 

CONSTITUTIONAL JURISPRUDENCE; STATE OF WEST VIRGINIA; 

INSTITUTE FOR MARRIAGE AND PUBLIC POLICY; HELEN M. ALVARE; 

STATE OF INDIANA; STATE OF ALABAMA; STATE OF ALASKA; STATE 

OF ARIZONA; STATE OF COLORADO; STATE OF IDAHO; STATE OF 
6

LOUISIANA; STATE OF MONTANA; STATE OF NEBRASKA; STATE OF 

OKLAHOMA; STATE OF SOUTH CAROLINA; STATE OF SOUTH DAKOTA; 

STATE OF UTAH; STATE OF WYOMING; WALLBUILDERS, LLC; LIBERTY 

COUNSEL; AMERICAN COLLEGE OF PEDIATRICIANS; SCHOLARS OF

HISTORY AND RELATED DISCIPLINES; AMERICAN LEADERSHIP FUND; 

ROBERT P. GEORGE; SHERIF GIRGIS; RYAN T. ANDERSON; PAUL 

MCHUGH; UNITED STATES CONFERENCE OF CATHOLIC BISHOPS;

NATIONAL ASSOCIATION OF EVANGELICALS; CHURCH OF JESUS CHRIST 

OF LATTER−DAY SAINTS; THE ETHICS & RELIGIOUS LIBERTY 

COMMISSION OF THE SOUTHERN BAPTIST CONVENTION; LUTHERAN

CHURCH−MISSOURI SYNOD; THE BECKET FUND FOR RELIGIOUS 

LIBERTY; EAGLE FORUM EDUCATION AND LEGAL DEFENSE FUND; DAVID 

BOYLE; ROBERT OSCAR LOPEZ; CONCERNED WOMEN FOR AMERICA; THE 

FAMILY FOUNDATION OF VIRGINIA,

Amici Supporting Appellant,

CONSTITUTIONAL LAW SCHOLARS; ASHUTOSH BHAGWAT; LEE 

BOLLINGER; ERWIN CHEMERINSKY; WALTER DELLINGER; MICHAEL C. 

DORF; LEE EPSTEIN; DANIEL FARBER; BARRY FRIEDMAN; MICHAEL

JAY GERHARDT, Professor; DEBORAH HELLMAN; JOHN CALVIN 

JEFFRIES, JR.; LAWRENCE LESSIG; WILLIAM MARSHALL; FRANK 

MICHELMAN; JANE S. SCHACTER; CHRISTOPHER H. SCHROEDER;

SUZANNA SHERRY; GEOFFREY R. STONE; DAVID STRAUSS; LAURENCE 

H. TRIBE, Professor; WILLIAM VAN ALSTYNE; OUTSERVE−SLDN; THE 

AMERICAN MILITARY PARTNER ASSOCIATION; THE AMERICAN

SOCIOLOGICAL ASSOCIATION; VIRGINIA CONSTITUTIONAL LAW 

PROFESSORS; AMERICAN PSYCHOLOGICAL ASSOCIATION; THE AMERICAN 

ACADEMY OF PEDIATRICS; AMERICAN PSYCHIATRIC ASSOCIATION; 

NATIONAL ASSOCIATION OF SOCIAL WORKERS; VIRGINIA 

PSYCHOLOGICAL ASSOCIATION; EQUALITY NC; SOUTH CAROLINA 

QUALITY COALITION; CHANTELLE FISHER−BORNE; MARCIE 

FISHER−BORNE; CRYSTAL HENDRIX; LEIGH SMITH; SHANA CARIGNAN; 

MEGAN PARKER; TERRI BECK; LESLIE ZANAGLIO; LEE KNIGHT 

CAFFERY; DANA DRAA; SHAWN LONG; CRAIG JOHNSON; ESMERALDA 

MEJIA; CHRISTINA GINTER−MEJIA; CATO INSTITUTE; 

CONSTITUTIONAL ACCOUNTABILITY CENTER; HISTORIANS OF 

MARRIAGE; PETER W. BARDAGLIO; NORMA BASCH; STEPHANIE COONTZ;

NANCY F. COTT; TOBY L. DITZ; ARIELA R. DUBLER; LAURA F. 

EDWARDS; SARAH BARRINGER GORDON; MICHAEL GROSSBERG; HENDRIK 

HARTOG; ELLEN HERMAN; MARTHA HODES; LINDA K. KERBER; ALICE

KESSLER−HARRIS; ELAINE TYLER MAY; SERENA MAYERI; STEVEN 

MINTZ; ELIZABETH PLECK; CAROLE SHAMMAS; MARY L. SHANLEY; AMY 

DRU STANLEY; BARBARA WELKE; PARENTS, FAMILIES AND FRIENDS OF 

LESBIANS AND GAYS, INC.; KERRY ABRAMS, Albert Clark Tate, 

Jr. Professor of Law, University of Virginia School of Law; 

VIVIAN HAMILTON, Professor of Law, William and Mary; 
7

MEREDITH HARBACH, Professor of Law, University of Richmond; 

JOAN HEIFETZ HOLLINGER, John and Elizabeth Boalt Lecturer in 

Residence, University of California, Berkeley School of Law; 

COURTNEY G. JOSLIN, Professor of Law, University of 

California, Davis School of Law; NAACP LEGAL DEFENSE AND 

EDUCATION FUND, INC.; NATIONAL ASSOCIATION FOR THE 

ADVANCEMENT OF COLORED PEOPLE; HOWARD UNIVERSITY SCHOOL OF 

LAW CIVIL RIGHTS CLINIC; FAMILY EQUALITY COUNCIL; COLAGE; 

GLMA: HEALTH PROFESSIONALS ADVANCING LGBT EQUALITY; WILLIAM 

N. ESKRIDGE, JR.; REBECCA L. BROWN; DANIEL A. FARBER; 

MICHAEL GERHARDT; JACK KNIGHT; ANDREW KOPPELMAN; MELISSA 

LAMB SAUNDERS; NEIL S. SIEGEL; JANA B. SINGER; HISTORIANS OF 

ANTI−GAY DISCRIMINATION; ANTI−DEFAMATION LEAGUE; AMERICANS 

UNITED FOR SEPARATION OF CHURCH AND STATE; BEND THE ARC: A 

JEWISH PARTNERSHIP FOR JUSTICE; HADASSAH, THE WOMEN'S 

ZIONIST ORGANIZATION OF AMERICA; HINDU AMERICAN FOUNDATION; 

THE INTERFAITH ALLIANCE FOUNDATION; JAPANESE AMERICAN 

CITIZENS LEAGUE; JEWISH SOCIAL POLICY ACTION NETWORK; 

KESHET; METROPOLITAN COMMUNITY CHURCHES; MORE LIGHT 

PRESBYTERIANS; THE NATIONAL COUNCIL OF JEWISH WOMEN; 

NEHIRIM; PEOPLE FOR THE AMERICAN WAY FOUNDATION; 

PRESBYTERIAN WELCOME; RECONCILINGWORKS: LUTHERANS FOR FULL

PARTICIPATION; RELIGIOUS INSTITUTE, INC.; SIKH AMERICAN 

LEGAL DEFENSE AND EDUCATION FUND; SOCIETY FOR HUMANISTIC 

JUDAISM; T'RUAH: THE RABBINIC CALL FOR HUMAN RIGHTS; WOMEN'S

LEAGUE FOR CONSERVATIVE JUDAISM; COLUMBIA LAW SCHOOL 

SEXUALITY AND GENDER LAW CLINIC; BISHOPS OF THE EPISCOPAL 

CHURCH IN VIRGINIA; CENTRAL ATLANTIC CONFERENCE OF THE

UNITED CHURCH OF CHRIST; CENTRAL CONFERENCE OF AMERICAN 

RABBIS; MORMONS FOR EQUALITY; RECONSTRUCTIONIST RABBINICAL 

ASSOCIATION; RECONSTRUCTIONIST RABBINICAL COLLEGE AND JEWISH 

RECONSTRUCTIONIST COMMUNITIES; UNION FOR REFORM JUDAISM; THE 

UNITARIAN UNIVERSALIST ASSOCIATION; AFFIRMATION; COVENANT 

NETWORK OF PRESBYTERIANS; METHODIST FEDERATION FOR SOCIAL 

ACTION; MORE LIGHT PRESBYTERIANS; PRESBYTERIAN WELCOME;

RECONCILING MINISTRIES NETWORK; RECONCILINGWORKS: LUTHERANS 

FOR FULL PARTICIPATION; RELIGIOUS INSTITUTE, INC.; WOMEN OF 

REFORM JUDAISM; 28 EMPLOYERS AND ORGANIZATIONS REPRESENTING 

EMPLOYERS; COMMONWEALTH OF MASSACHUSETTS; STATE OF 

CALIFORNIA; STATE OF CONNECTICUT; DISTRICT OF COLUMBIA; 

STATE OF ILLINOIS; STATE OF IOWA; STATE OF MAINE; STATE OF 

MARYLAND; STATE OF NEW HAMPSHIRE; STATE OF NEW MEXICO; STATE 

OF NEW YORK; STATE OF OREGON; STATE OF VERMONT; STATE OF 

WASHINGTON; GARY J. GATES; NATIONAL AND WESTERN STATES 

WOMEN'S RIGHTS ORGANIZATIONS; VIRGINIA CHAPTER OF THE 

AMERICAN ACADEMY OF MATRIMONIAL LAWYERS; THE NATIONAL 

WOMEN'S LAW CENTER; EQUAL RIGHTS ADVOCATES; LEGAL MOMENTUM; 
8

NATIONAL ASSOCIATION OF WOMEN LAWYERS; NATIONAL PARTNERSHIP 

FOR WOMEN & FAMILIES; SOUTHWEST WOMEN'S LAW CENTER; WOMEN'S 

LAW PROJECT; PROFESSORS OF LAW ASSOCIATED WITH THE WILLIAMS 

INSTITUTE; BAY AREA LAWYERS FOR INDIVIDUAL FREEDOM;

LEADERSHIP CONFERENCE ON CIVIL AND HUMAN RIGHTS; PUBLIC 

INTEREST ORGANIZATIONS; BAR ASSOCIATIONS; FAMILY LAW AND 

CONFLICT OF LAWS PROFESSORS; GAY AND LESBIAN ADVOCATES AND 

DEFENDERS; PEOPLE OF FAITH FOR EQUALITY IN VIRGINIA; 

CELEBRATION CENTER FOR SPIRITUAL LIVING; CLARENDON 

PRESBYTERIAN CHURCH; COMMONWEALTH BAPTIST CHURCH;

CONGREGATION OR AMI; HOPE UNITED CHURCH OF CHRIST; LITTLE 

RIVER UCC; METROPOLITAN COMMUNITY CHURCH OF NORTHERN 

VIRGINIA; MT. VERNON UNITARIAN CHURCH; ST. JAMES UCC,; ST. 

JOHN'S UCC; NEW LIFE METROPOLITAN COMMUNITY CHURCH; 

UNITARIAN UNIVERSALIST FELLOWSHIP OF THE PENINSULA;

UNITARIAN UNIVERSALIST CONGREGATION OF STERLING; UNITED 

CHURCH OF CHRIST OF FREDERICKSBURG; UNITARIAN UNIVERSALIST 

CHURCH OF LOUDOUN; ANDREW MERTZ; REV. MARIE HULM ADAM; REV. 

MARTY ANDERSON; REV ROBIN ANDERSON; REV. VERNE ARENS; RABBI 

LIA BASS; REV. JOSEPH G. BEATTIE; REV. SUE BROWNING; REV. 

JIM BUNDY; REV. MARK BYRD; REV. STEVEN C. CLUNN; REV. DR. 

JOHN COPERHAVER; RABBI GARY CREDITOR; REV. DAVID ENSIGN; 

REV. HENRY FAIRMAN; RABBI JESSE GALLOP; REV. TOM 

GERSTENLAUER; REV. ROBIN H. GORSLINE; REV. TRISH HALL; REV. 

WARREN HAMMONDS; REV. JON HEASLET; REV. DOUGLAS HODGES; REV. 

PHYLLIS HUBBELL; REV. STEPHEN G. HYDE; REV. JANET JAMES; 

REV. JOHN MANWELL; REV. JAMES W. MCNEAL; REV. MARC BOSWELL; 

REV. ANDREW CLIVE MILLARD; REV. DR. MELANIE MILLER; REV. 

AMBER NEUROTH; REV. JAMES PAPILE; REV. LINDA OLSON PEEBLES; 

REV. DON PRANGE; RABBI MICHAEL RAGOZIN; RABBI BEN ROMER; 

REV. JENNIFER RYU; REV. ANYA SAMMLER−MICHAEL; REV. AMY

SCHWARTZMAN; REV. DANNY SPEARS; REV. MARK SURIANO; REV. ROB 

VAUGHN; REV. DANIEL VELEZ−RIVERA; REV. KATE R. WALKER; REV. 

TERRYE WILLIAMS; REV. DR. KAREN−MARIE YUST,

Amici Supporting Appellees.
9

No. 14-1173

TIMOTHY B. BOSTIC; TONY C. LONDON; CAROL SCHALL; MARY 

TOWNLEY,

Plaintiffs − Appellees,

JOANNE HARRIS; JESSICA DUFF; CHRISTY BERGHOFF; VICTORIA 

KIDD, on behalf of themselves and all others similarly 

situated,

Intervenors,

v.

MICHÈLE MCQUIGG,

Intervenor/Defendant – Appellant,

and

GEORGE E. SCHAEFER, III, in his official capacity as the 

Clerk of Court for Norfolk Circuit Court; JANET M. RAINEY,

in her official capacity as State Registrar of Vital 

Records; ROBERT F. MCDONNELL, in his official capacity as 

Governor of Virginia; KENNETH T. CUCCINELLI, II, in his 

official capacity as Attorney General of Virginia,

Defendants.

------------------------------------

DAVID A. ROBINSON; ALAN J. HAWKINS; JASON S. CARROLL; NORTH 

CAROLINA VALUES COALITION; LIBERTY, LIFE, AND LAW 

FOUNDATION; SOCIAL SCIENCE PROFESSORS; FAMILY RESEARCH 

COUNCIL; VIRGINIA CATHOLIC CONFERENCE, LLC; CENTER FOR 

CONSTITUTIONAL JURISPRUDENCE; STATE OF WEST VIRGINIA; 

INSTITUTE FOR MARRIAGE AND PUBLIC POLICY; HELEN M. ALVARE; 

STATE OF INDIANA; STATE OF ALABAMA; STATE OF ALASKA; STATE 

OF ARIZONA; STATE OF COLORADO; STATE OF IDAHO; STATE OF 

LOUISIANA; STATE OF MONTANA; STATE OF NEBRASKA; STATE OF 

OKLAHOMA; STATE OF SOUTH CAROLINA; STATE OF SOUTH DAKOTA; 

STATE OF UTAH; STATE OF WYOMING; WALLBUILDERS, LLC; LIBERTY 

COUNSEL; AMERICAN COLLEGE OF PEDIATRICIANS; SCHOLARS OF
10

HISTORY AND RELATED DISCIPLINES; AMERICAN LEADERSHIP FUND; 

ROBERT P. GEORGE; SHERIF GIRGIS; RYAN T. ANDERSON; PAUL 

MCHUGH; UNITED STATES CONFERENCE OF CATHOLIC BISHOPS;

NATIONAL ASSOCIATION OF EVANGELICALS; CHURCH OF JESUS CHRIST 

OF LATTER−DAY SAINTS; THE ETHICS & RELIGIOUS LIBERTY 

COMMISSION OF THE SOUTHERN BAPTIST CONVENTION; LUTHERAN

CHURCH−MISSOURI SYNOD; THE BECKET FUND FOR RELIGIOUS 

LIBERTY; EAGLE FORUM EDUCATION AND LEGAL DEFENSE FUND; DAVID 

BOYLE; ROBERT OSCAR LOPEZ; CONCERNED WOMEN FOR AMERICA; THE 

FAMILY FOUNDATION OF VIRGINIA,

Amici Supporting Appellant,

CONSTITUTIONAL LAW SCHOLARS; ASHUTOSH BHAGWAT; LEE 

BOLLINGER; ERWIN CHEMERINSKY; WALTER DELLINGER; MICHAEL C. 

DORF; LEE EPSTEIN; DANIEL FARBER; BARRY FRIEDMAN; MICHAEL

JAY GERHARDT, Professor; DEBORAH HELLMAN; JOHN CALVIN 

JEFFRIES, JR.; LAWRENCE LESSIG; WILLIAM MARSHALL; FRANK 

MICHELMAN; JANE S. SCHACTER; CHRISTOPHER H. SCHROEDER;

SUZANNA SHERRY; GEOFFREY R. STONE; DAVID STRAUSS; LAURENCE 

H. TRIBE, Professor; WILLIAM VAN ALSTYNE; OUTSERVE−SLDN; THE 

AMERICAN MILITARY PARTNER ASSOCIATION; THE AMERICAN

SOCIOLOGICAL ASSOCIATION; VIRGINIA CONSTITUTIONAL LAW 

PROFESSORS; AMERICAN PSYCHOLOGICAL ASSOCIATION; THE AMERICAN 

ACADEMY OF PEDIATRICS; AMERICAN PSYCHIATRIC ASSOCIATION; 

NATIONAL ASSOCIATION OF SOCIAL WORKERS; VIRGINIA 

PSYCHOLOGICAL ASSOCIATION; EQUALITY NC; SOUTH CAROLINA 

QUALITY COALITION; CHANTELLE FISHER−BORNE; MARCIE 

FISHER−BORNE; CRYSTAL HENDRIX; LEIGH SMITH; SHANA CARIGNAN; 

MEGAN PARKER; TERRI BECK; LESLIE ZANAGLIO; LEE KNIGHT 

CAFFERY; DANA DRAA; SHAWN LONG; CRAIG JOHNSON; ESMERALDA 

MEJIA; CHRISTINA GINTER−MEJIA; CATO INSTITUTE; 

CONSTITUTIONAL ACCOUNTABILITY CENTER; HISTORIANS OF 

MARRIAGE; PETER W. BARDAGLIO; NORMA BASCH; STEPHANIE COONTZ;

NANCY F. COTT; TOBY L. DITZ; ARIELA R. DUBLER; LAURA F. 

EDWARDS; SARAH BARRINGER GORDON; MICHAEL GROSSBERG; HENDRIK 

HARTOG; ELLEN HERMAN; MARTHA HODES; LINDA K. KERBER; ALICE

KESSLER−HARRIS; ELAINE TYLER MAY; SERENA MAYERI; STEVEN 

MINTZ; ELIZABETH PLECK; CAROLE SHAMMAS; MARY L. SHANLEY; AMY 

DRU STANLEY; BARBARA WELKE; PARENTS, FAMILIES AND FRIENDS OF 

LESBIANS AND GAYS, INC.; KERRY ABRAMS, Albert Clark Tate, 

Jr. Professor of Law, University of Virginia School of Law; 

VIVIAN HAMILTON, Professor of Law, William and Mary; 

MEREDITH HARBACH, Professor of Law, University of Richmond; 

JOAN HEIFETZ HOLLINGER, John and Elizabeth Boalt Lecturer in 

Residence, University of California, Berkeley School of Law; 

COURTNEY G. JOSLIN, Professor of Law, University of 
11

California, Davis School of Law; NAACP LEGAL DEFENSE AND 

EDUCATION FUND, INC.; NATIONAL ASSOCIATION FOR THE 

ADVANCEMENT OF COLORED PEOPLE; HOWARD UNIVERSITY SCHOOL OF 

LAW CIVIL RIGHTS CLINIC; FAMILY EQUALITY COUNCIL; COLAGE; 

GLMA: HEALTH PROFESSIONALS ADVANCING LGBT EQUALITY; WILLIAM 

N. ESKRIDGE, JR.; REBECCA L. BROWN; DANIEL A. FARBER; 

MICHAEL GERHARDT; JACK KNIGHT; ANDREW KOPPELMAN; MELISSA 

LAMB SAUNDERS; NEIL S. SIEGEL; JANA B. SINGER; HISTORIANS OF 

ANTI−GAY DISCRIMINATION; ANTI−DEFAMATION LEAGUE; AMERICANS 

UNITED FOR SEPARATION OF CHURCH AND STATE; BEND THE ARC: A 

JEWISH PARTNERSHIP FOR JUSTICE; HADASSAH, THE WOMEN'S 

ZIONIST ORGANIZATION OF AMERICA; HINDU AMERICAN FOUNDATION; 

THE INTERFAITH ALLIANCE FOUNDATION; JAPANESE AMERICAN 

CITIZENS LEAGUE; JEWISH SOCIAL POLICY ACTION NETWORK; 

KESHET; METROPOLITAN COMMUNITY CHURCHES; MORE LIGHT 

PRESBYTERIANS; THE NATIONAL COUNCIL OF JEWISH WOMEN; 

NEHIRIM; PEOPLE FOR THE AMERICAN WAY FOUNDATION; 

PRESBYTERIAN WELCOME; RECONCILINGWORKS: LUTHERANS FOR FULL

PARTICIPATION; RELIGIOUS INSTITUTE, INC.; SIKH AMERICAN 

LEGAL DEFENSE AND EDUCATION FUND; SOCIETY FOR HUMANISTIC 

JUDAISM; T'RUAH: THE RABBINIC CALL FOR HUMAN RIGHTS; WOMEN'S

LEAGUE FOR CONSERVATIVE JUDAISM; COLUMBIA LAW SCHOOL 

SEXUALITY AND GENDER LAW CLINIC; BISHOPS OF THE EPISCOPAL 

CHURCH IN VIRGINIA; CENTRAL ATLANTIC CONFERENCE OF THE

UNITED CHURCH OF CHRIST; CENTRAL CONFERENCE OF AMERICAN 

RABBIS; MORMONS FOR EQUALITY; RECONSTRUCTIONIST RABBINICAL 

ASSOCIATION; RECONSTRUCTIONIST RABBINICAL COLLEGE AND JEWISH 

RECONSTRUCTIONIST COMMUNITIES; UNION FOR REFORM JUDAISM; THE 

UNITARIAN UNIVERSALIST ASSOCIATION; AFFIRMATION; COVENANT 

NETWORK OF PRESBYTERIANS; METHODIST FEDERATION FOR SOCIAL 

ACTION; MORE LIGHT PRESBYTERIANS; PRESBYTERIAN WELCOME;

RECONCILING MINISTRIES NETWORK; RECONCILINGWORKS: LUTHERANS 

FOR FULL PARTICIPATION; RELIGIOUS INSTITUTE, INC.; WOMEN OF 

REFORM JUDAISM; 28 EMPLOYERS AND ORGANIZATIONS REPRESENTING 

EMPLOYERS; COMMONWEALTH OF MASSACHUSETTS; STATE OF 

CALIFORNIA; STATE OF CONNECTICUT; DISTRICT OF COLUMBIA; 

STATE OF ILLINOIS; STATE OF IOWA; STATE OF MAINE; STATE OF 

MARYLAND; STATE OF NEW HAMPSHIRE; STATE OF NEW MEXICO; STATE 

OF NEW YORK; STATE OF OREGON; STATE OF VERMONT; STATE OF 

WASHINGTON; GARY J. GATES; NATIONAL AND WESTERN STATES 

WOMEN'S RIGHTS ORGANIZATIONS; VIRGINIA CHAPTER OF THE 

AMERICAN ACADEMY OF MATRIMONIAL LAWYERS; THE NATIONAL 

WOMEN'S LAW CENTER; EQUAL RIGHTS ADVOCATES; LEGAL MOMENTUM; 

NATIONAL ASSOCIATION OF WOMEN LAWYERS; NATIONAL PARTNERSHIP 

FOR WOMEN & FAMILIES; SOUTHWEST WOMEN'S LAW CENTER; WOMEN'S 

LAW PROJECT; PROFESSORS OF LAW ASSOCIATED WITH THE WILLIAMS 

INSTITUTE; BAY AREA LAWYERS FOR INDIVIDUAL FREEDOM;
12

LEADERSHIP CONFERENCE ON CIVIL AND HUMAN RIGHTS; PUBLIC 

INTEREST ORGANIZATIONS; BAR ASSOCIATIONS; FAMILY LAW AND 

CONFLICT OF LAWS PROFESSORS; GAY AND LESBIAN ADVOCATES AND 

DEFENDERS; PEOPLE OF FAITH FOR EQUALITY IN VIRGINIA; 

CELEBRATION CENTER FOR SPIRITUAL LIVING; CLARENDON 

PRESBYTERIAN CHURCH; COMMONWEALTH BAPTIST CHURCH;

CONGREGATION OR AMI; HOPE UNITED CHURCH OF CHRIST; LITTLE 

RIVER UCC; METROPOLITAN COMMUNITY CHURCH OF NORTHERN 

VIRGINIA; MT. VERNON UNITARIAN CHURCH; ST. JAMES UCC,; ST. 

JOHN'S UCC; NEW LIFE METROPOLITAN COMMUNITY CHURCH; 

UNITARIAN UNIVERSALIST FELLOWSHIP OF THE PENINSULA;

UNITARIAN UNIVERSALIST CONGREGATION OF STERLING; UNITED 

CHURCH OF CHRIST OF FREDERICKSBURG; UNITARIAN UNIVERSALIST 

CHURCH OF LOUDOUN; ANDREW MERTZ; REV. MARIE HULM ADAM; REV. 

MARTY ANDERSON; REV ROBIN ANDERSON; REV. VERNE ARENS; RABBI 

LIA BASS; REV. JOSEPH G. BEATTIE; REV. SUE BROWNING; REV. 

JIM BUNDY; REV. MARK BYRD; REV. STEVEN C. CLUNN; REV. DR. 

JOHN COPERHAVER; RABBI GARY CREDITOR; REV. DAVID ENSIGN; 

REV. HENRY FAIRMAN; RABBI JESSE GALLOP; REV. TOM 

GERSTENLAUER; REV. ROBIN H. GORSLINE; REV. TRISH HALL; REV. 

WARREN HAMMONDS; REV. JON HEASLET; REV. DOUGLAS HODGES; REV. 

PHYLLIS HUBBELL; REV. STEPHEN G. HYDE; REV. JANET JAMES; 

REV. JOHN MANWELL; REV. JAMES W. MCNEAL; REV. MARC BOSWELL; 

REV. ANDREW CLIVE MILLARD; REV. DR. MELANIE MILLER; REV. 

AMBER NEUROTH; REV. JAMES PAPILE; REV. LINDA OLSON PEEBLES; 

REV. DON PRANGE; RABBI MICHAEL RAGOZIN; RABBI BEN ROMER; 

REV. JENNIFER RYU; REV. ANYA SAMMLER−MICHAEL; REV. AMY

SCHWARTZMAN; REV. DANNY SPEARS; REV. MARK SURIANO; REV. ROB 

VAUGHN; REV. DANIEL VELEZ−RIVERA; REV. KATE R. WALKER; REV. 

TERRYE WILLIAMS; REV. DR. KAREN−MARIE YUST,

Amici Supporting Appellees.

Appeals from the United States District Court for the Eastern 

District of Virginia, at Norfolk. Arenda L. Wright Allen, 

District Judge. (2:13-cv-00395-AWA-LRL)

Argued: May 13, 2014 Decided: July 28, 2014

Before NIEMEYER, GREGORY, and FLOYD, Circuit Judges.
13

Affirmed by published opinion. Judge Floyd wrote the majority 

opinion, in which Judge Gregory joined. Judge Niemeyer wrote a 

separate dissenting opinion.

ARGUED: David Brandt Oakley, POOLE MAHONEY PC, Chesapeake, 

Virginia; David Austin Robert Nimocks, ALLIANCE DEFENDING 

FREEDOM, Washington, D.C., for Appellants George E. Schaefer, 

III and Michèle McQuigg. Stuart Alan Raphael, OFFICE OF THE 

ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellant 

Janet M. Rainey. Theodore B. Olson, GIBSON, DUNN & CRUTCHER, 

LLP, Washington, D.C., for Appellees. James D. Esseks, AMERICAN 

CIVIL LIBERTIES UNION, New York, New York, for Intervenors. ON 

BRIEF: Jeffrey F. Brooke, POOLE MAHONEY PC, Chesapeake, 

Virginia, for Appellant George E. Schaefer, III. Byron J. 

Babione, Kenneth J. Connelly, J. Caleb Dalton, ALLIANCE 

DEFENDING FREEDOM, Scottsdale, Arizona, for Appellant Michèle B. 

McQuigg. Mark R. Herring, Attorney General, Cynthia E. Hudson, 

Chief Deputy Attorney General, Rhodes B. Ritenour, Deputy 

Attorney General, Allyson K. Tysinger, Senior Assistant Attorney 

General, Catherine Crooks Hill, Senior Assistant Attorney 

General, Trevor S. Cox, Deputy Solicitor General, OFFICE OF THE 

ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellant 

Janet M. Rainey. David Boies, Armonk, New York, William A. 

Isaacson, Washington, D.C., Jeremy M. Goldman, Oakland, 

California, Robert Silver, Joshua I. Schiller, BOIES, SCHILLER & 

FLEXNER LLP, New York, New York; Theodore J. Boutrous, Jr., 

Joshua S. Lipshutz, GIBSON, DUNN & CRUTCHER LLP, Los Angeles, 

California; Thomas B. Shuttleworth, Robert E. Ruloff, Charles B. 

Lustig, Andrew M. Hendrick, Erik C. Porcaro, SHUTTLEWORTH, 

RULOFF, SWAIN, HADDAD & MORECOCK, P.C., Virginia Beach, 

Virginia, for Appellees. Rebecca K. Glenberg, AMERICAN CIVIL 

LIBERTIES UNION OF VIRGINIA FOUNDATION, INC., Richmond, 

Virginia; Joshua A. Block, AMERICAN CIVIL LIBERTIES UNION 

FOUNDATION, New York, New York; Gregory R. Nevins, Tara L. 

Borelli, LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., Atlanta, 

Georgia; Paul M. Smith, Luke C. Platzer, Mark P. Gaber, JENNER & 

BLOCK LLP, Washington, D.C., for Intervenors. David A. 

Robinson, North Haven, Connecticut, as Amicus. Lynn D. Wardle, 

BRIGHAM YOUNG UNIVERSITY LAW SCHOOL, Provo, Utah; William C. 

Duncan, MARRIAGE LAW FOUNDATION, Lehi, Utah, for Amici Alan J. 

Hawkins and Jason S. Carroll. Deborah J. Dewart, DEBORAH J. 

DEWART, ATTORNEY AT LAW, Swansboro, North Carolina, for Amici 

North Carolina Values Coalition and Liberty, Life, and Law 

Foundation. Steve C. Taylor, ALLIANCE LEGAL GROUP, Chesapeake, 

Virginia, for Amicus Social Science Professors. Paul Benjamin 
14

Linton, Northbrook, Illinois, for Amicus Family Research 

Council. John C. Eastman, Anthony T. Caso, Center for 

Constitutional Jurisprudence, CHAPMAN UNIVERSITY DALE E. FOWLER 

SCHOOL OF LAW, Orange, California, for Amici Virginia Catholic 

Conference, LLC and Center for Constitutional Jurisprudence. 

Patrick Morrisey, Attorney General, Julie Marie Blake, Assistant 

Attorney General, Elbert Lin, Solicitor General, OFFICE OF THE 

WEST VIRGINIA ATTORNEY GENERAL, Charleston, West Virginia, for 

Amicus State of West Virginia. D. John Sauer, St. Louis, 

Missouri, for Amicus Institute for Marriage and Public Policy. 

Henry P. Wall, Columbia, South Carolina, for Amicus Helen M. 

Alvare. Gregory F. Zoeller, Attorney General, Thomas M. Fisher, 

Solicitor General, OFFICE OF THE ATTORNEY GENERAL, Indianapolis, 

Indiana; Luther Strange, Attorney General, OFFICE OF THE 

ATTORNEY GENERAL OF ALABAMA, Montgomery, Alabama; Michael C. 

Geraghty, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF 

ALASKA, Juneau, Alaska; Thomas C. Horne, Attorney General, 

OFFICE OF THE ATTORNEY GENERAL OF ARIZONA, Phoenix, Arizona; 

John Suthers, Attorney General, OFFICE OF THE ATTORNEY GENERAL 

OF COLORADO, Denver, Colorado; Lawrence G. Wasden, Attorney 

General, OFFICE OF THE ATTORNEY GENERAL OF IDAHO, Boise, Idaho; 

James D. "Buddy" Caldwell, Attorney General, OFFICE OF THE 

ATTORNEY GENERAL OF LOUISIANA, Baton Rouge, Louisiana; Timothy 

C. Fox, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF 

MONTANA, Helena, Montana; Jon Bruning, Attorney General, OFFICE 

OF THE ATTORNEY GENERAL OF NEBRASKA, Lincoln, Nebraska; E. Scott 

Pruitt, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF 

OKLAHOMA, Oklahoma City, Oklahoma; Alan Wilson, Attorney 

General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, 

Columbia, South Carolina; Marty J. Jackley, Attorney General, 

OFFICE OF THE ATTORNEY GENERAL OF SOUTH DAKOTA, Pierre, South 

Dakota; Sean Reyes, Attorney General, OFFICE OF THE ATTORNEY 

GENERAL OF THE STATE OF UTAH, Salt Lake City, Utah; Peter K. 

Michael, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF 

WYOMING, Cheyenne, Wyoming, for Amici States of Indiana, 

Alabama, Alaska, Arizona, Colorado, Idaho, Louisiana, Montana, 

Nebraska, Oklahoma, South Carolina, South Dakota, Utah, and 

Wyoming. Stephen M. Crampton, Mary E. McAlister, LIBERTY 

COUNSEL, Lynchburg, Virginia, for Amicus WallBuilders, LLC. 

Mathew D. Staver, Anita L. Staver, LIBERTY COUNSEL, Orlando, 

Florida, for Amici Liberty Counsel and American College of 

Pediatricians. Frank D. Mylar, MYLAR LAW, P.C., Salt Lake City, 

Utah, for Amici Scholars of History and Related Disciplines and 

American Leadership Fund. Michael F. Smith, THE SMITH APPELLATE 

LAW FIRM, Washington, D.C., for Amici Robert P. George, Sherif 

Girgis, and Ryan T. Anderson. Gerard V. Bradley, NOTRE DAME LAW 

SCHOOL, Notre Dame, Indiana; Kevin T. Snider, PACIFIC JUSTICE 
15

INSTITUTE, Oakland, California, for Amicus Paul McHugh. Anthony 

R. Picarello, Jr., U.S. CONFERENCE OF CATHOLIC BISHOPS, 

Washington, D.C.; R. Shawn Gunnarson, KIRTON MCCONKIE, Salt Lake 

City, Utah, for Amici United States Conference of Catholic 

Bishops, National Association of Evangelicals, Church of Jesus 

Christ of Latter-Day Saints, The Ethics & Religious Liberty 

Commission of the Southern Baptist Convention, and Lutheran 

Church-Missouri Synod. Eric Rassbach, Asma Uddin, THE BECKET 

FUND FOR RELIGIOUS LIBERTY, Washington, D.C., for Amicus The 

Becket Fund for Religious Liberty. Lawrence J. Joseph, 

Washington, D.C. for Amicus Eagle Forum Education and Legal 

Defense Fund. David Boyle, Long Beach, California, as Amicus. 

David Boyle, Long Beach, California, for Amicus Robert Oscar 

Lopez. Abbe David Lowell, Christopher D. Man, CHADBOURNE & 

PARKE LLP, Washington, D.C., for Amici Outserve-SLDN and The 

American Military Partner Association. Geoffrey R. Stone, THE 

UNIVERSITY OF CHICAGO LAW SCHOOL, Chicago, Illinois; Lori Alvino 

McGill, LATHAM & WATKINS LLP, Washington, D.C., for Amici 

Constitutional Law Scholars Ashutosh Bhagwat, Lee Bollinger, 

Erwin Chemerinsky, Walter Dellinger, Michael C. Dorf, Lee 

Epstein, Daniel Farber, Barry Friedman, Michael J. Gerhardt, 

Deborah Hellman, John C. Jeffries, Jr., Lawrence Lessig, William 

Marshall, Frank Michelman, Jane S. Schacter, Christopher H. 

Schroeder, Suzanna Sherry, Geoffrey R. Stone, David Strauss, 

Laurence H. Tribe, and William Van Alstyne. Steven W. Fitschen, 

THE NATIONAL LEGAL FOUNDATION, Virginia Beach, Virginia; Holly 

L. Carmichael, San Jose, California, for Amicus Concerned Women 

for America. Carmine D. Boccuzzi, Jr., Mark A. Lightner, Andra 

Troy, Andrew P. Meiser, CLEARY GOTTLIEB STEEN & HAMILTON LLP, 

New York, New York, for Amicus The American Sociological 

Association. L. Steven Emmert, SYKES, BOURDON, AHERN & LEVY, 

P.C., Virginia Beach, Virginia, for Amicus Virginia 

Constitutional Law Professors. Nathalie F.P. Gilfoyle, AMERICAN 

PSYCHOLOGICAL ASSOCIATION, Washington, D.C.; Bruce V. Spiva, THE 

SPIVA LAW FIRM PLLC, Washington, D.C., for Amici American 

Psychological Association, American Academy of Pediatrics, 

American Psychiatric Association, National Association of Social 

Workers, and Virginia Psychological Association. Mark 

Kleinschmidt, TIN FULTON WALKER & OWEN, Chapel Hill, North 

Carolina; Ryan T. Butler, Greensboro, North Carolina, for Amici 

Equality NC and South Carolina Equality Coalition. Rose A. 

Saxe, James D. Esseks, AMERICAN CIVIL LIBERTIES UNION 

FOUNDATION, New York, New York; Garrard R. Beeney, David A. 

Castleman, Catherine M. Bradley, W. Rudolph Kleysteuber, 

SULLIVAN & CROMWELL LLP, New York, New York, for Amici Marcie 

and Chantelle Fisher-Borne, Crystal Hendrix and Leigh Smith, 

Shana Carignan and Megan Parker, Terri Beck and Leslie Zanaglio, 
16

Lee Knight Caffery and Dana Draa, Shawn Long and Craig Johnson, 

and Esmeralda Mejia and Christina Ginter-Mejia. Elizabeth B. 

Wydra, Douglas T. Kendall, Judith E. Schaeffer, David H. Gans, 

CONSTITUTIONAL ACCOUNTABILITY CENTER, Washington, D.C.; Ilya 

Shapiro, CATO INSTITUTE, Washington, D.C., for Amici Cato 

Institute and Constitutional Accountability Center. Daniel 

McNeel Lane, Jr., Matthew E. Pepping, San Antonio, Texas, 

Jessica M. Weisel, AKIN GUMP STRAUSS HAUER & FELD LLP, Los 

Angeles, California, for Amici Historians of Marriage Peter W. 

Bardaglio, Norma Basch, Stephanie Coontz, Nancy F. Cott, Toby L. 

Ditz, Ariela R. Dubler, Laura F. Edwards, Sarah Barringer 

Gordon, Michael Grossberg, Hendrik Hartog, Ellen Herman, Martha 

Hodes, Linda K. Kerber, Alice Kessler-Harris, Elaine Tyler May, 

Serena Mayeri, Steve Mintz, Elizabeth Pleck, Carole Shammas, 

Mary L. Shanley, Amy Dru Stanley, and Barbara Welke. Jiyun 

Cameron Lee, Andrew J. Davis, FOLGER LEVIN LLP, San Francisco, 

California, for Amicus Parents, Families and Friends of Lesbians 

and Gays, Inc. Rita F. Lin, Laura W. Weissbein, Sara Bartel, 

MORRISON & FOERSTER LLP, San Francisco, California, for Amici 

Kerry Abrams, Albert Clark Tate, Jr. Professor of Law University 

of Virginia School of Law, Vivian Hamilton, Professor of Law 

William and Mary, Meredith Harbach, Professor of Law University 

of Richmond, Joan Heifetz Hollinger, John and Elizabeth Boalt 

Lecturer in Residence University of California, Berkeley School 

of Law, Courtney G. Joslin, Professor of Law University of 

California, Davis School of Law, and Forty-Four Other Family Law 

Professors. Sherrilyn Ifill, Christina A. Swarns, Ria Tabacco 

Mar, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., New York, New 

York; Kim M. Keenan, NAACP, Baltimore, Maryland, for Amici NAACP 

Legal Defense & Educational Fund, Inc. and National Association 

for the Advancement of Colored People. Aderson Bellegarde 

Francois, HOWARD UNIVERSITY SCHOOL OF LAW CIVIL RIGHTS CLINIC, 

Washington, D.C.; Brad W. Seiling, Benjamin G. Shatz, MANATT, 

PHELPS & PHILLIPS, LLP, Los Angeles, California, for Amicus 

Howard University School of Law Civil Rights Clinic. Alec W. 

Farr, Washington, D.C., Tracy M. Talbot, Katherine Keating, 

BRYAN CAVE LLP, San Francisco, California, for Amici Family 

Equality Council and COLAGE. Nicholas M. O'Donnell, SULLIVAN & 

WORCESTER LLP, Boston, Massachusetts, for Amicus GLMA: Health 

Professionals Advancing LGBT Equality. Kathleen M. O'Sullivan, 

Mica D. Simpson, PERKINS COIE LLP, Seattle, Washington, for 

Amici William N. Eskridge, Jr., Rebecca L. Brown, Daniel A. 

Farber, Michael Gerhardt, Jack Knight, Andrew Koppelman, Melissa 

Lamb Saunders, Neil S. Siegel, and Jana B. Singer. Catherine E. 

Stetson, Erica Knievel Songer, Mary Helen Wimberly, Katie D. 

Fairchild, Madeline H. Gitomer, HOGAN LOVELLS US LLP, 

Washington, D.C., for Amicus Historians of Antigay 
17

Discrimination. Rocky C. Tsai, Samuel P. Bickett, Rebecca 

Harlow, ROPES & GRAY LLP, San Francisco, California; Steven M. 

Freeman, Seth M. Marnin, Melissa Garlick, ANTI-DEFAMATION 

LEAGUE, New York, New York, for Amici Anti-Defamation League, 

Americans United for Separation of Church and State, Bend the 

Arc: A Jewish Partnership for Justice, Hadassah, The Women's 

Zionist Organization of America, Hindu American Foundation, The 

Interfaith Alliance Foundation, Japanese American Citizens 

League, Jewish Social Policy Action Network, Keshet, 

Metropolitan Community Churches, More Light Presbyterians, The 

National Council of Jewish Women, Nehirim, People For the 

American Way Foundation, Presbyterian Welcome, Reconcilingworks: 

Lutherans for Full Participation, Religious Institute, Inc., 

Sikh American Legal Defense and Education Fund, Society for 

Humanistic Judaism, T'Ruah: The Rabbinic Call for Human Rights, 

and Women's League For Conservative Judaism. Matthew P. 

McGuire, Beverlee E. Silva, Diane S. Wizig, ALSTON & BIRD LLP, 

Durham, North Carolina; Suzanne B. Goldberg, Sexuality and 

Gender Law Clinic, COLUMBIA LAW SCHOOL, New York, New York, for 

Amicus Columbia Law School Sexuality and Gender Law Clinic. 

Jeffrey S. Trachtman, Norman C. Simon, Jason M. Moff, Kurt M. 

Denk, Jessica N. Witte, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New 

York, New York, for Amici Bishops of the Episcopal Church in 

Virginia, The Central Atlantic Conference of the United Church 

of Christ, Central Conference of American Rabbis, Mormons for 

Equality, Reconstructionist Rabbinical Association, 

Reconstructionist Rabbinical College and Jewish 

Reconstructionist Communities, Union for Reform Judaism, The 

Unitarian Universalist Association, Affirmation, Covenant 

Network of Presbyterians, Methodist Federation for Social 

Action, More Light Presbyterians, Presbyterian Welcome, 

Reconciling Ministries Network, Reconsilingworks: Lutherans For 

Full Participation, Religious Institute, Inc., and Women of 

Reform Judaism. Susan Baker Manning, Michael L. Whitlock, 

Margaret E. Sheer, Jared A. Craft, Sara M. Carian, Jessica C. 

Brooks, Katherine R. Moskop, John A. Polito, Stephanie Schuster, 

BINGHAM MCCUTCHEN LLP, Washington, D.C., for Amicus 28 Employers 

and Organizations Representing Employers. Martha Coakley, 

Attorney General, Jonathan B. Miller, Assistant Attorney 

General, Genevieve C. Nadeau, Assistant Attorney General, 

Michelle L. Leung, Assistant Attorney General, Frederick D. 

Augenstern, Assistant Attorney General, OFFICE OF THE ATTORNEY 

GENERAL OF THE COMMONWEALTH OF MASSACHUSETTS, Boston, 

Massachusetts; Kamala D. Harris, Attorney General, OFFICE OF THE 

ATTORNEY GENERAL OF CALIFORNIA, Sacramento, California; George 

Jepsen, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF 

CONNECTICUT, Hartford, Connecticut; Irvin B. Nathan, Attorney 
18

General, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF 

COLUMBIA, Washington, D.C.; Lisa Madigan, Attorney General, 

OFFICE OF THE ATTORNEY GENERAL OF ILLINOIS, Chicago, Illinois; 

Tom Miller, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF 

IOWA, Des Moines, Iowa; Janet T. Mills, Attorney General, OFFICE 

OF THE ATTORNEY GENERAL OF MAINE, Augusta, Maine; Douglas F. 

Gansler, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF 

MARYLAND, Baltimore, Maryland; Joseph A. Foster, Attorney 

General, OFFICE OF THE ATTORNEY GENERAL OF NEW HAMPSHIRE, 

Concord, New Hampshire; Gary K. King, Attorney General, OFFICE 

OF THE ATTORNEY GENERAL OF NEW MEXICO, Santa Fe, New Mexico; 

Eric T. Schneiderman, Attorney General, OFFICE OF THE ATTORNEY 

GENERAL OF NEW YORK, New York, New York; Ellen F. Rosenblum, 

Attorney General, OFFICE OF THE ATTORNEY GENERAL OF OREGON, 

Salem, Oregon; William H. Sorrell, Attorney General, OFFICE OF 

THE ATTORNEY GENERAL OF VERMONT, Montpelier, Vermont; Robert W. 

Ferguson, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF 

WASHINGTON, Olympia, Washington, for Amici Massachusetts, 

California, Connecticut, District of Columbia, Illinois, Iowa, 

Maine, Maryland, New Hampshire, New Mexico, New York, Oregon, 

Vermont, and Washington. Brad W. Seiling, Benjamin G. Shatz, 

MANATT, PHELPS & PHILLIPS, LLP, Los Angeles, California, for 

Amicus Gary J. Gates. Bruce A. Wessel, Moez M. Kaba, C. 

Mitchell Hendy, Brian Eggleston, IRELL & MANELLA LLP, Los 

Angeles, California, for Amicus National and Western States 

Women's Rights Organizations. Donald K. Butler, BATZLI STILES 

BUTLER, P.C., Richmond, Virginia; Susan M. Butler, SHOUNBACH, 

P.C., Fairfax, Virginia; Daniel L. Gray, Stephanie J. Smith, 

Kristen L. Kugel, Anne B. Robinson, COOPER GINSBERG GRAY, PLLC, 

Fairfax, Virginia, for Amicus Virginia Chapter of The American 

Academy of Matrimonial Lawyers. Marcia D. Greenberger, Emily J. 

Martin, Cortelyou C. Kenney, NATIONAL WOMEN'S LAW CENTER, 

Washington, D.C., for Amici The National Women's Law Center, 

Equal Rights Advocates, Legal Momentum, National Association of 

Women Lawyers, National Partnership for Women & Families, 

Southwest Women's Law Center, Women's Law Project, and 

Professors of Law Associated with The Williams Institute. 

Jerome C. Roth, Nicole S. Phillis, MUNGER, TOLLES & OLSON LLP, 

San Francisco, California, for Amicus Bay Area Lawyers for 

Individual Freedom. Shannon P. Minter, Christopher F. Stoll, 

Jaime Huling Delaye, NATIONAL CENTER FOR LESBIAN RIGHTS, 

Washington, D.C., for Amici Leadership Conference on Civil and 

Human Rights, Public Interest Organizations, and Bar 

Associations. Joanna L. Grossman, HOFSTRA LAW SCHOOL, 

Hempstead, New York; Marjory A. Gentry, ARNOLD & PORTER LLP, San 

Francisco, California, for Amicus Family Law and Conflict of 

Laws Professors. Mark C. Fleming, Felicia H. Ellsworth, Boston, 
19

Massachusetts, Paul R.Q. Wolfson, Dina B. Mishra, Leah M. 

Litman, Washington, D.C., Alan Schoenfeld, WILMER CUTLER 

PICKERING HALE AND DORR LLP, New York, New York, for Amicus Gay 

& Lesbian Advocates & Defenders. John Humphrey, THE HUMPHREY 

LAW FIRM, Alexandria, Virginia, for Amici People of Faith For 

Equality in Virginia (POFEV), Celebration Center for Spiritual 

Living, Clarendon Presbyterian Church, Commonwealth Baptist 

Church, Congregation or AMI, Hope United Church of Christ, 

Little River UCC, Metropolitan Community Church of Northern 

Virginia, Mt. Vernon Unitarian Church, St. James UCC, St. John's 

UCC, New Life Metropolitan Community Church, Unitarian 

Universalist Fellowship of the Peninsula, Unitarian Universalist 

Congregation of Sterling, United Church of Christ of 

Fredericksburg, Unitarian Universalist Church of Loudoun, Rev. 

Marie Hulm Adam, Rev. Marty Anderson, Rev. Robin Anderson, Rev. 

Verne Arens, Rabbi Lia Bass, Rev. Joseph G. Beattie, Rev. Marc 

Boswell, Rev. Sue Browning, Rev. Jim Bundy, Rev. Mark Byrd, Rev. 

Steven C. Clunn, Rev. Dr. John Coperhaver, Rabbi Gary Creditor, 

Rev. David Ensign, Rev. Henry Fairman, Rabbi Jesse Gallop, Rev. 

Tom Gerstenlauer, Rev. Dr. Robin H. Gorsline, Rev. Trish Hall, 

Rev. Warren Hammonds, Rev. Jon Heaslet, Rev. Douglas Hodges, 

Rev. Phyllis Hubbell, Rev. Stephen G. Hyde, Rev. Janet James, 

Rev. John Manwell, Rev. James W. McNeal, Andrew Mertz, Rev. 

Andrew Clive Millard, Rev. Dr. Melanie Miller, Rev. Amber 

Neuroth, Rev. James Papile, Rev. Linda Olson Peebles, Rev. Don 

Prange, Rabbi Michael Ragozin, Rabbi Ben Romer, Rev. Jennifer 

Ryu, Rev. Anya Sammler-Michael, Rabbi Amy Schwartzman, Rev. 

Danny Spears, Rev. Mark Suriano, Rev. Rob Vaughn, Rev. Daniel 

Velez-Rivera, Rev. Kate R. Walker, Rev. Terrye Williams, and 

Rev. Dr. Karen-Marie Yust.
20

FLOYD, Circuit Judge:

Via various state statutes and a state constitutional 

amendment, Virginia prevents same-sex couples from marrying and 

refuses to recognize same-sex marriages performed elsewhere. 

Two same-sex couples filed suit to challenge the 

constitutionality of these laws, alleging that they violate the 

Due Process and Equal Protection Clauses of the Fourteenth 

Amendment. The district court granted the couples’ motion for 

summary judgment and enjoined Virginia from enforcing the laws. 

This appeal followed. Because we conclude that Virginia’s samesex marriage bans impermissibly infringe on its citizens’ 

fundamental right to marry, we affirm.

I.

A.

This case concerns a series of statutory and constitutional 

mechanisms that Virginia employed to prohibit legal recognition 

for same-sex relationships in that state.1

 Virginia enacted the 

 1 Three other states in this Circuit have similar bans: 

North Carolina, N.C. Const. art. XIV, § 6; N.C. Gen. Stat. 

§§ 51-1, 51-1.2; South Carolina, S.C. Const. art. XVII, § 15; 

S.C. Code Ann. §§ 20-1-10, 20-1-15; and West Virginia, W. Va. 

Code § 48-2-603. The Southern District of West Virginia has 

stayed a challenge to West Virginia’s statute pending our 

resolution of this appeal. McGee v. Cole, No. 3:13-cv-24068 

(S.D. W. Va. June 10, 2014) (order directing stay).
21

first of these laws in 1975: Virginia Code section 20-45.2, 

which provides that “marriage between persons of the same sex is 

prohibited.” After the Supreme Court of Hawaii took steps to 

legalize same-sex marriage in the mid-1990s, Virginia amended 

section 20-45.2 to specify that “[a]ny marriage entered into by 

persons of the same sex in another state or jurisdiction shall 

be void in all respects in Virginia and any contractual rights 

created by such marriage shall be void and unenforceable.” In 

2004, Virginia added civil unions and similar arrangements to 

the list of prohibited same-sex relationships via the 

Affirmation of Marriage Act. See Va. Code Ann. § 20-45.3.

Virginia’s efforts to ban same-sex marriage and other 

legally recognized same-sex relationships culminated in the 

Marshall/Newman Amendment to the Virginia Constitution:

That only a union between one man and one woman may be 

a marriage valid in or recognized by this Commonwealth 

and its political subdivisions.

This Commonwealth and its political subdivisions shall 

not create or recognize a legal status for 

relationships of unmarried individuals that intends to 

approximate the design, qualities, significance, or 

effects of marriage. Nor shall this Commonwealth or 

its political subdivisions create or recognize another 

union, partnership, or other legal status to which is 

assigned the rights, benefits, obligations, qualities, 

or effects of marriage.

Va. Const. art. I, § 15-A. The Virginia Constitution imposes 

two hurdles that a potential amendment must jump before becoming 

law: the General Assembly must approve the amendment in two 
22

separate legislative sessions, and the people must ratify it. 

Va. Const. art. XII, § 1. The General Assembly approved the 

Marshall/Newman Amendment in 2005 and 2006. In November 2006, 

Virginia’s voters ratified it by a vote of fifty-seven percent 

to forty-three percent. In the aggregate, Virginia Code 

sections 20-45.2 and 20-45.3 and the Marshall/Newman Amendment 

prohibit same-sex marriage, ban other legally recognized samesex relationships, and render same-sex marriages performed 

elsewhere legally meaningless under Virginia state law.

B.

Same-sex couples Timothy B. Bostic and Tony C. London and 

Carol Schall and Mary Townley (collectively, the Plaintiffs) 

brought this lawsuit to challenge the constitutionality of 

Virginia Code sections 20-45.2 and 20-45.3, the Marshall/Newman 

Amendment, and “any other Virginia law that bars same-sex 

marriage or prohibits the State’s recognition of otherwiselawful same-sex marriages from other jurisdictions” 

(collectively, the Virginia Marriage Laws). The Plaintiffs 

claim that the “inability to marry or have their relationship 

recognized by the Commonwealth of Virginia with the dignity and 

respect accorded to married opposite-sex couples has caused them 

significant hardship . . . and severe humiliation, emotional 

distress, pain, suffering, psychological harm, and stigma.”
23

Bostic and London have been in a long-term, committed 

relationship with each other since 1989 and have lived together 

for more than twenty years. They “desire to marry each other 

under the laws of the Commonwealth in order to publicly announce 

their commitment to one another and to enjoy the rights, 

privileges, and protections that the State confers on married 

couples.” On July 1, 2013, Bostic and London applied for a 

marriage license from the Clerk for the Circuit Court for the 

City of Norfolk. The Clerk denied their application because 

they are both men.

Schall and Townley are women who have been a couple since 

1985 and have lived together as a family for nearly thirty 

years. They were lawfully married in California in 2008. In 

1998, Townley gave birth to the couple’s daughter, E. S.-T. 

Schall and Townley identify a host of consequences of their 

inability to marry in Virginia and Virginia’s refusal to 

recognize their California marriage, including the following:

• Schall could not visit Townley in the hospital for several 

hours when Townley was admitted due to pregnancy-related 

complications.

• Schall cannot legally adopt E. S.-T., which forced her to 

retain an attorney to petition for full joint legal and 

physical custody.
24

• Virginia will not list both Schall and Townley as E. S.-

T.’s parents on her birth certificate.

• Until February 2013, Schall and Townley could not cover one 

another on their employer-provided health insurance. 

Townley has been able to cover Schall on her insurance 

since then, but, unlike an opposite-sex spouse, Schall must 

pay state income taxes on the benefits she receives.

• Schall and Townley must pay state taxes on benefits paid 

pursuant to employee benefits plans in the event of one of 

their deaths.

• Schall and Townley cannot file joint state income tax 

returns, which has cost them thousands of dollars.

On July 18, 2013, Bostic and London sued former Governor 

Robert F. McDonnell, former Attorney General Kenneth T. 

Cuccinelli, and George E. Schaefer, III, in his official 

capacity as the Clerk for the Circuit Court for the City of 

Norfolk. The Plaintiffs filed their First Amended Complaint on 

September 3, 2013. The First Amended Complaint added Schall and 

Townley as plaintiffs, removed McDonnell and Cuccinelli as 

defendants, and added Janet M. Rainey as a defendant in her 

official capacity as the State Registrar of Vital Records. The 

Plaintiffs allege that the Virginia Marriage Laws are facially 

invalid under the Due Process and Equal Protection Clauses of 
25

the Fourteenth Amendment and that Schaefer and Rainey violated 

42 U.S.C. § 1983 by enforcing those laws.

The parties filed cross-motions for summary judgment. The 

Plaintiffs also requested a permanent injunction in connection 

with their motion for summary judgment and moved, in the 

alternative, for a preliminary injunction in the event that the 

district court denied their motion for summary judgment. The 

district court granted a motion by Michèle McQuigg—the Prince 

William County Clerk of Court—to intervene as a defendant on 

January 21, 2014. Two days later, new Attorney General Mark 

Herring—as Rainey’s counsel—submitted a formal change in 

position and refused to defend the Virginia Marriage Laws, 

although Virginia continues to enforce them. McQuigg adopted 

Rainey’s prior motion for summary judgment and the briefs in 

support of that motion.

The district court held that the Virginia Marriage Laws 

were unconstitutional on February 14, 2014. Bostic v. Rainey, 

970 F. Supp. 2d 456, 483 (E.D. Va. 2014). It therefore denied 

Schaefer’s and McQuigg’s motions for summary judgment and

granted the Plaintiffs’ motion. The district court also 

enjoined Virginia’s employees—including Rainey and her 

employees—and Schaefer, McQuigg, and their officers, agents, and 

employees from enforcing the Virginia Marriage Laws. Id. at 
26

484. The court stayed the injunction pending our resolution of 

this appeal. Id.

Rainey, Schaefer, and McQuigg timely appealed the district 

court’s decision. We have jurisdiction pursuant to 28 U.S.C. 

§ 1291. On March 10, 2014, we allowed the plaintiffs from 

Harris v. Rainey—a similar case pending before Judge Michael 

Urbanski in the Western District of Virginia—to intervene. 

Judge Urbanski had previously certified that case as a class 

action on behalf of “all same-sex couples in Virginia who have 

not married in another jurisdiction” and “all same-sex couples 

in Virginia who have married in another jurisdiction,” excluding 

the Plaintiffs. Harris v. Rainey, No. 5:13-cv-077, 2014 WL 

352188, at *1, 12 (W.D. Va. Jan. 31, 2014).

Our analysis proceeds in three steps. First, we consider 

whether the Plaintiffs possess standing to bring their claims. 

Second, we evaluate whether the Supreme Court’s summary 

dismissal of a similar lawsuit in Baker v. Nelson, 409 U.S. 810 

(1972) (mem.), remains binding. Third, we determine which level

of constitutional scrutiny applies here and test the Virginia 

Marriage Laws using the appropriate standard. For purposes of 

this opinion, we adopt the terminology the district court used 

to describe the parties in this case. The Plaintiffs, Rainey, 

and the Harris class are the “Opponents” of the Virginia 

Marriage Laws. Schaefer and McQuigg are the “Proponents.”
27

II.

Before we turn to the merits of the parties’ arguments in 

this case, we consider Schaefer’s contention that “[t]he trial 

court erred as a matter of law when it found all Plaintiffs had 

standing and asserted claims against all Defendants.” We review 

the district court’s disposition of cross-motions for summary 

judgment—including its determinations regarding standing—de 

novo, viewing the facts in the light most favorable to the nonmoving party. Libertarian Party of Va. v. Judd, 718 F.3d 308, 

313 (4th Cir. 2013); Covenant Media of S.C., LLC v. City of N. 

Charleston, 493 F.3d 421, 427-28 (4th Cir. 2007). Summary 

judgment is appropriate when “there is no genuine dispute as to 

any material fact and the movant is entitled to judgment as a 

matter of law.” Libertarian Party of Va., 718 F.3d at 313-14

(quoting Fed. R. Civ. P. 56(a)).

To establish standing under Article III of the 

Constitution, a plaintiff must “allege (1) an injury that is 

(2) fairly traceable to the defendant’s allegedly unlawful 

conduct and that is (3) likely to be redressed by the requested 

relief.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 590 

(1992) (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)) 

(internal quotation marks omitted). The standing requirement 

applies to each claim that a plaintiff seeks to press. 

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006). 
28

Schaefer premises his argument that the Plaintiffs lack standing 

to bring their claims on the idea that every plaintiff must have 

standing as to every defendant. However, the Supreme Court has 

made it clear that “the presence of one party with standing is 

sufficient to satisfy Article III’s case-or-controversy 

requirement.” Rumsfeld v. Forum for Academic & Institutional 

Rights, Inc., 547 U.S. 47, 52 n.2 (2006); see also Dep’t of 

Commerce v. U.S. House of Representatives, 525 U.S. 316, 330 

(1999) (holding that a case is justiciable if some, but not 

necessarily all, of the plaintiffs have standing as to a 

particular defendant); Vill. of Arlington Heights v. Metro. 

Housing Dev. Corp., 429 U.S. 252, 263-64 (1977) (same). The 

Plaintiffs’ claims can therefore survive Schaefer’s standing 

challenge as long as one couple satisfies the standing 

requirements with respect to each defendant.

Schaefer serves as the Clerk for the Circuit Court for the 

City of Norfolk. In Virginia, circuit court clerks are 

responsible for issuing marriage licenses and filing records of 

marriage. Va. Code Ann. §§ 20-14, 32.1-267. Although Schall 

and Townley did not seek a marriage license from Schaefer, the 

district court found that Bostic and London did so and that 

Schaefer denied their request because they are a same-sex 
29

couple.2 Bostic, 970 F. Supp. 2d at 462, 467. This license 

denial constitutes an injury for standing purposes. See S. 

Blasting Servs., Inc. v. Wilkes Cnty., 288 F.3d 584, 595 (4th 

Cir. 2002) (explaining that the plaintiffs had not suffered an 

injury because they had not applied for, or been denied, the 

permit in question); Scott v. Greenville Cnty., 716 F.2d 1409, 

1414-15 & n.6 (4th Cir. 1983) (holding that denial of building 

permit constituted an injury). Bostic and London can trace this 

denial to Schaefer’s enforcement of the allegedly 

unconstitutional Virginia Marriage Laws,3 and declaring those 

 2 Schaefer contends that Schall and Townley cannot bring a 

§ 1983 claim against him for the same reason: he did not commit 

any act or omission that harmed them. To bring a successful 

§ 1983 claim, a plaintiff must show that “the alleged 

infringement of federal rights [is] ‘fairly attributable to the 

state[.]’” Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982) 

(quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). 

Schaefer’s action in denying Bostic and London’s application for 

a marriage license is clearly attributable to the state. The 

district court could therefore entertain a § 1983 claim against 

Schaefer without ascertaining whether he committed any action 

with respect to Schall and Townley.

3 For this reason, and contrary to Schaefer’s assertions, 

Schaefer is also a proper defendant under Ex parte Young, 209 

U.S. 123 (1908). Pursuant to Ex parte Young, the Eleventh 

Amendment does not bar a citizen from suing a state officer to 

enjoin the enforcement of an unconstitutional law when the 

officer has “some connection with the enforcement of the act.” 

Lytle v. Griffith, 240 F.3d 404, 412 (4th Cir. 2001) (emphasis

omitted) (quoting Ex parte Young, 209 U.S. at 157). Schaefer 

bears the requisite connection to the enforcement of the 

Virginia Marriage Laws due to his role in granting and denying 

applications for marriage licenses.
30

laws unconstitutional and enjoining their enforcement would

redress Bostic and London’s injuries. Bostic and London 

therefore possess Article III standing with respect to Schaefer. 

We consequently need not consider whether Schall and Townley 

have standing to sue Schaefer. See Horne v. Flores, 557 U.S. 

433, 446-47 (2009) (declining to analyze whether additional 

plaintiffs had standing when one plaintiff did).

Rainey—as the Registrar of Vital Records—is tasked with 

developing Virginia’s marriage license application form and 

distributing it to the circuit court clerks throughout Virginia. 

Va. Code Ann. §§ 32.1-252(A)(9), 32.1-267(E). Neither 

Schaefer’s nor Rainey’s response to the First Amended Complaint 

disputes its description of Rainey’s duties:

Defendant Rainey is responsible for ensuring 

compliance with the Commonwealth’s laws relating to 

marriage in general and, more specifically, is 

responsible for enforcement of the specific provisions 

at issue in this Amended Complaint, namely those laws 

that limit marriage to opposite-sex couples and that 

refuse to honor the benefits of same-sex marriages 

lawfully entered into in other states.

In addition to performing these marriage-related functions, 

Rainey develops and distributes birth certificate forms, 

oversees the rules relating to birth certificates, and furnishes 

forms relating to adoption so that Virginia can collect the 

information necessary to prepare the adopted child’s birth 
31

certificate. Id. §§ 32.1-252(A)(2)-(3), (9), 32.1-257, 32.1-

261(A)(1), 32.1-262, 32.1-269.

Rainey’s promulgation of a marriage license application 

form that does not allow same-sex couples to obtain marriage 

licenses resulted in Schaefer’s denial of Bostic and London’s 

marriage license request. For the reasons we describe above, 

this license denial constitutes an injury. Bostic and London 

can trace this injury to Rainey due to her role in developing 

the marriage license application form in compliance with the 

Virginia Marriage Laws, and the relief they seek would redress 

their injuries. Bostic and London consequently have standing to 

sue Rainey.

Schall and Townley also possess standing to bring their 

claims against Rainey. They satisfy the injury requirement in 

two ways. First, in equal protection cases—such as this case—

“[w]hen the government erects a barrier that makes it more 

difficult for members of one group to obtain a benefit than it 

is for members of another group, . . . . [t]he ‘injury in fact’ 

. . . is the denial of equal treatment resulting from the 

imposition of the barrier[.]” Ne. Fla. Chapter of Associated 

Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 

666 (1993). The Virginia Marriage Laws erect such a barrier, 

which prevents same-sex couples from obtaining the emotional, 

social, and financial benefits that opposite-sex couples realize
32

upon marriage. Second, Schall and Townley allege that they have 

suffered stigmatic injuries due to their inability to get 

married in Virginia and Virginia’s refusal to recognize their 

California marriage. Stigmatic injury stemming from 

discriminatory treatment is sufficient to satisfy standing’s 

injury requirement if the plaintiff identifies “some concrete 

interest with respect to which [he or she] [is] personally 

subject to discriminatory treatment” and “[t]hat interest . . . 

independently satisf[ies] the causation requirement of standing 

doctrine.” Allen, 468 U.S. at 757 n.22, abrogated on other 

grounds by Lexmark Int’l, Inc. v. Static Control Components, 134 

S. Ct. 1377 (2014). Schall and Townley point to several 

concrete ways in which the Virginia Marriage Laws have resulted 

in discriminatory treatment. For example, they allege that 

their marital status has hindered Schall from visiting Townley 

in the hospital, prevented Schall from adopting E. S.-T.,4 and 

subjected Schall and Townley to tax burdens from which married 

opposite-sex couples are exempt. Because Schall and Townley 

highlight specific, concrete instances of discrimination rather 

 4 Virginia does not explicitly prohibit same-sex couples 

from adopting children. The Virginia Marriage Laws impose a 

functional ban on adoption by same-sex couples because the 

Virginia Code allows only married couples or unmarried 

individuals to adopt children. Va. Code Ann. § 63.2-1232(A)(6).
33

than making abstract allegations, their stigmatic injuries are 

legally cognizable.

Schall and Townley’s injuries are traceable to Rainey’s 

enforcement of the Virginia Marriage Laws. Because declaring 

the Virginia Marriage Laws unconstitutional and enjoining their 

enforcement would redress Schall and Townley’s injuries, they 

satisfy standing doctrine’s three requirements with respect to

Rainey. In sum, each of the Plaintiffs has standing as to at 

least one defendant.

III.

Having resolved the threshold issue of whether the 

Plaintiffs have standing to sue Schaefer and Rainey, we now turn 

to the merits of the Opponents’ Fourteenth Amendment arguments. 

We begin with the issue of whether the Supreme Court’s summary 

dismissal in Baker v. Nelson settles this case. Baker came to 

the Supreme Court as an appeal from a Minnesota Supreme Court 

decision, which held that a state statute that the court 

interpreted to bar same-sex marriages did not violate the 

Fourteenth Amendment’s Due Process or Equal Protection Clauses. 

Baker v. Nelson, 191 N.W.2d 185, 187 (Minn. 1971). At the time, 

28 U.S.C. § 1257 required the Supreme Court to accept appeals of

state supreme court cases involving constitutional challenges to 

state statutes, such as Baker. See Hicks v. Miranda, 422 U.S. 
34

332, 344 (1975). The Court dismissed the appeal in a onesentence opinion “for want of a substantial federal question.” 

Baker, 409 U.S. 810.

Summary dismissals qualify as “votes on the merits of a 

case.” Hicks, 422 U.S. at 344 (quoting Ohio ex rel. Eaton v. 

Price, 360 U.S. 246, 247 (1959)) (internal quotation marks 

omitted). They therefore “prevent lower courts from coming to 

opposite conclusions on the precise issues presented and 

necessarily decided.” Mandel v. Bradley, 432 U.S. 173, 176 

(1977) (per curiam). However, the fact that Baker and the case 

at hand address the same precise issues does not end our 

inquiry. Summary dismissals lose their binding force when 

“doctrinal developments” illustrate that the Supreme Court no 

longer views a question as unsubstantial, regardless of whether 

the Court explicitly overrules the case. Hicks, 422 U.S. at 344 

(quoting Port Auth. Bondholders Protective Comm. v. Port of N.Y. 

Auth., 387 F.2d 259, 263 n.3 (2d Cir. 1967)) (internal quotation 

marks omitted). The district court determined that doctrinal 

developments stripped Baker of its status as binding precedent. 

Bostic, 970 F. Supp. 2d at 469-70. Every federal court to 

consider this issue since the Supreme Court decided United 

States v. Windsor, 133 S. Ct. 2675 (2013), has reached the same 

conclusion. See Bishop v. Smith, Nos. 14-5003, 14-5006, 2014 WL 

3537847, at *6-7 (10th Cir. July 18, 2014); Kitchen v. Herbert, 
35

No. 13-4178, 2014 WL 2868044, at *7-10 (10th Cir. June 25, 

2014); Love v. Beshear, No. 3:13-cv-750-H, 2014 WL 2957671, *2-3

(W.D. Ky. July 1, 2014); Baskin v. Bogan, Nos. 1:14-cv-00355-

RLY-TAB, 1:14-cv-00404-RLY-TAB, 2014 WL 2884868, at *4-6 (S.D. 

Ind. June 25, 2014); Wolf v. Walker, No. 14-cv-64-bbc, 2014 WL 

2558444, at *4-6 (W.D. Wis. June 6, 2014); Whitewood v. Wolf, 

No. 1:13-cv-1861, 2014 WL 2058105, at *5-6 (M.D. Pa. May 20, 

2014); Geiger v. Kitzhaber, Nos. 6:13-cv-01834-MC, 6:13-cv02256-MC, 2014 WL 2054264, at *1 n.1 (D. Or. May 19, 2014); 

Latta v. Otter, No. 1:13-cv-00482-CWD, 2014 WL 1909999, at *8-9 

(D. Idaho May 13, 2014); DeBoer v. Snyder, 973 F. Supp. 2d 757, 

773 n.6 (E.D. Mich. 2014); De Leon v. Perry, 975 F. Supp. 2d 

632, 647-49 (W.D. Tex. 2014); McGee v. Cole, No. 3:13-24068, 

2014 WL 321122, at *8-10 (S.D. W. Va. Jan. 29, 2014).

Windsor concerned whether section 3 of the federal Defense 

of Marriage Act (DOMA) contravened the Constitution’s due 

process and equal protection guarantees. Section 3 defined 

“marriage” and “spouse” as excluding same-sex couples when those 

terms appeared in federal statutes, regulations, and directives, 

rendering legally married same-sex couples ineligible for myriad 

federal benefits. 133 S. Ct. at 2683, 2694. When it decided 

the case below, the Second Circuit concluded that Baker was no

longer precedential, Windsor v. United States, 699 F.3d 169, 

178-79 (2d Cir. 2012), over the dissent’s vigorous arguments to 
36

the contrary, see id. at 192-95 (Straub, J., dissenting in part 

and concurring in part). Despite this dispute, the Supreme 

Court did not discuss Baker in its opinion or during oral 

argument.5

The Supreme Court’s willingness to decide Windsor without 

mentioning Baker speaks volumes regarding whether Baker remains 

good law. The Court’s development of its due process and equal 

protection jurisprudence in the four decades following Baker is 

even more instructive. On the Due Process front, Lawrence v. 

Texas, 539 U.S. 558 (2003), and Windsor are particularly 

relevant. In Lawrence, the Court recognized that the Due 

Process Clauses of the Fifth and Fourteenth Amendments “afford 

constitutional protection to personal decisions relating to 

marriage, procreation, contraception, family relationships, 

child rearing, and education. . . . Persons in a homosexual 

relationship may seek autonomy for these purposes, just as 

 5 The constitutionality of a law that prohibited marriage 

from encompassing same-sex relationships was also at issue in 

Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), a case that the 

Supreme Court ultimately decided on standing grounds. Although 

the petitioners’ attorney attempted to invoke Baker during oral 

argument, Justice Ginsburg interjected: “Baker v. Nelson was 

1971. The Supreme Court hadn’t even decided that gender-based 

classifications get any kind of heightened scrutiny. . . . 

[S]ame-sex intimate conduct was considered criminal in many 

states in 1971, so I don’t think we can extract much in Baker v. 

Nelson.” Oral Argument at 11:33, Hollingsworth v. Perry, 133 S. 

Ct. 2652 (No. 12-144), available at 2013 WL 1212745.
37

heterosexual persons do.” Id. at 574. These considerations led 

the Court to strike down a Texas statute that criminalized samesex sodomy. Id. at 563, 578-79. The Windsor Court based its 

decision to invalidate section 3 of DOMA on the Fifth 

Amendment’s Due Process Clause. The Court concluded that 

section 3 could not withstand constitutional scrutiny because 

“the principal purpose and the necessary effect of [section 3]

are to demean those persons who are in a lawful same-sex 

marriage,” who—like the unmarried same-sex couple in Lawrence—

have a constitutional right to make “moral and sexual choices.”

133 S. Ct. at 2694-95. These cases firmly position same-sex 

relationships within the ambit of the Due Process Clauses’ 

protection.

The Court has also issued several major equal protection 

decisions since it decided Baker. The Court’s opinions in Craig 

v. Boren, 429 U.S. 190 (1976), and Frontiero v. Richardson, 411 

U.S. 677 (1973), identified sex-based classifications as quasisuspect, causing them to warrant intermediate scrutiny rather 

than rational basis review, see Craig, 429 U.S. at 218

(Rehnquist, J., dissenting) (coining the term “intermediate 

level scrutiny” to describe the Court’s test (internal quotation 

marks omitted)). Two decades later, in Romer v. Evans, the 

Supreme Court struck down a Colorado constitutional amendment 

that prohibited legislative, executive, and judicial action 
38

aimed at protecting gay, lesbian, and bisexual individuals from 

discrimination. 517 U.S. 620, 624, 635 (1996). The Court 

concluded that the law violated the Fourteenth Amendment’s Equal 

Protection Clause because “its sheer breadth is so discontinuous 

with the reasons offered for it that the amendment seems 

inexplicable by anything but animus toward the class it 

affects,” causing the law to “lack[] a rational relationship to 

legitimate state interests.” Id. at 632. Finally, the Supreme 

Court couched its decision in Windsor in both due process and 

equal protection terms. 133 S. Ct. at 2693, 2695. These cases 

demonstrate that, since Baker, the Court has meaningfully

altered the way it views both sex and sexual orientation through 

the equal protection lens.

In light of the Supreme Court’s apparent abandonment of 

Baker and the significant doctrinal developments that occurred 

after the Court issued its summary dismissal in that case, we 

decline to view Baker as binding precedent and proceed to the 

meat of the Opponents’ Fourteenth Amendment arguments.

IV.

A.

Our analysis of the Opponents’ Fourteenth Amendment claims 

has two components. First, we ascertain what level of 

constitutional scrutiny applies: either rational basis review
39

or some form of heightened scrutiny, such as strict scrutiny. 

Second, we apply the appropriate level of scrutiny to determine 

whether the Virginia Marriage Laws pass constitutional muster.

Under both the Due Process and Equal Protection Clauses, 

interference with a fundamental right warrants the application 

of strict scrutiny.6

 Washington v. Glucksberg, 521 U.S. 702, 

719-20 (1997); Zablocki v. Redhail, 434 U.S. 374, 383 (1978). 

We therefore begin by assessing whether the Virginia Marriage 

Laws infringe on a fundamental right. Fundamental rights spring 

from the Fourteenth Amendment’s protection of individual 

liberty, which the Supreme Court has described as “the right to 

define one’s own concept of existence, of meaning, of the 

universe, and of the mystery of human life.” Planned Parenthood

of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992). This liberty 

includes the fundamental right to marry. Zablocki, 434 U.S. at 

383; Loving v. Virginia, 388 U.S. 1, 12 (1967); see Griswold v. 

 6 The Equal Protection Clause also dictates that some form 

of heightened scrutiny applies when a law discriminates based on

a suspect or quasi-suspect classification, such as race or 

gender. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 

432, 440-41 (1985); Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 

313-14 (1976) (per curiam). This Court previously declined to 

recognize sexual orientation as a suspect classification in 

Thomasson v. Perry, 80 F.3d 915, 928 (4th Cir. 1996) (en banc), 

and Veney v. Wyche, 293 F.3d 726, 731-32 (4th Cir. 2002). 

Because we conclude that the Virginia Marriage Laws warrant 

strict scrutiny due to their infringement of the fundamental 

right to marry, we need not reach the question of whether 

Thomasson and Veney remain good law.
40

Connecticut, 381 U.S. 479, 485-86 (1965) (placing the right to 

marry within the fundamental right to privacy); see also Skinner 

v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) 

(characterizing marriage as “one of the basic civil rights of 

man”); Maynard v. Hill, 125 U.S. 190, 205 (1888) (calling 

marriage “the most important relation in life” and “the 

foundation of the family and of society, without which there 

would be neither civilization nor progress”).

The Opponents and Proponents agree that marriage is a 

fundamental right. They strongly disagree, however, regarding

whether that right encompasses the right to same-sex marriage. 

The Opponents argue that the fundamental right to marry belongs

to the individual, who enjoys the right to marry the person of 

his or her choice. By contrast, the Proponents point out that, 

traditionally, states have sanctioned only man-woman marriages. 

They contend that, in light of this history, the right to marry

does not include a right to same-sex marriage.

Relying on Washington v. Glucksberg, the Proponents aver

that the district court erred by not requiring “a careful 

description of the asserted fundamental liberty interest,” 521 

U.S. at 721 (internal quotation marks omitted), which they 

characterize as the right to “marriage to another person of the 

same sex,” not the right to marry. In Glucksberg, the Supreme 

Court described the right at issue as “a right to commit suicide 
41

with another’s assistance.” Id. at 724. The Court declined to 

categorize this right as a new fundamental right because it was 

not, “objectively, deeply rooted in this Nation’s history and 

tradition.” See id. at 720-21 (quoting Moore v. City of E. 

Cleveland, 431 U.S. 494, 503 (1977)) (internal quotation marks 

omitted). The Proponents urge us to reject the right to samesex marriage for the same reason.

We do not dispute that states have refused to permit samesex marriages for most of our country’s history. However, this 

fact is irrelevant in this case because Glucksberg’s analysis 

applies only when courts consider whether to recognize new 

fundamental rights. See id. at 720, 727 & n.19 (identifying the 

above process as a way of “expand[ing] the concept of 

substantive due process” beyond established fundamental rights, 

such as the right to marry (quoting Collins v. City of Harker 

Heights, 503 U.S. 115, 125 (1992)) (internal quotation marks 

omitted)). Because we conclude that the fundamental right to 

marry encompasses the right to same-sex marriage, Glucksberg’s 

analysis is inapplicable here.

Over the decades, the Supreme Court has demonstrated that 

the right to marry is an expansive liberty interest that may 

stretch to accommodate changing societal norms. Perhaps most 

notably, in Loving v. Virginia, the Supreme Court invalidated a 

Virginia law that prohibited white individuals from marrying 
42

individuals of other races. 388 U.S. at 4. The Court explained 

that “[t]he freedom to marry has long been recognized as one of 

the vital personal rights essential to the orderly pursuit of 

happiness by free men” and that no valid basis justified the 

Virginia law’s infringement of that right. Id. at 12.

Subsequently, in Zablocki v. Redhail, the Supreme Court 

considered the constitutionality of a Wisconsin statute that 

required people obligated to pay child support to obtain a court 

order granting permission to marry before they could receive a 

marriage license. 434 U.S. at 375, 383-84. The statute 

specified that a court should grant permission only to 

applicants who proved that they had complied with their child 

support obligations and demonstrated that their children were 

not likely to become “public charges.” Id. at 375 (internal 

quotation marks omitted). The Court held that the statute 

impermissibly infringed on the right to marry. See id. at 390-

91. Finally, in Turner v. Safley, the Court determined that a 

Missouri regulation that generally prohibited prison inmates 

from marrying was an unconstitutional breach of the right to 

marry. 482 U.S. 78, 82, 94-99 (1987).

These cases do not define the rights in question as “the 

right to interracial marriage,” “the right of people owing child 

support to marry,” and “the right of prison inmates to marry.” 

Instead, they speak of a broad right to marry that is not 
43

circumscribed based on the characteristics of the individuals 

seeking to exercise that right. The Supreme Court’s 

unwillingness to constrain the right to marry to certain 

subspecies of marriage meshes with its conclusion that the right 

to marry is a matter of “freedom of choice,” Zablocki, 434 U.S. 

at 387, that “resides with the individual,” Loving, 388 U.S. at 

12. If courts limited the right to marry to certain couplings, 

they would effectively create a list of legally preferred 

spouses, rendering the choice of whom to marry a hollow choice 

indeed.

The Proponents point out that Loving, Zablocki, and Turner

each involved opposite-sex couples. They contend that, because 

the couples in those cases chose to enter opposite-sex 

marriages, we cannot use them to conclude that the Supreme Court 

would grant the same level of constitutional protection to the 

choice to marry a person of the same sex. However, the Supreme 

Court’s decisions in Lawrence and Windsor suggest otherwise. In 

Lawrence, the Court expressly refused to narrowly define the 

right at issue as the right of “homosexuals to engage in 

sodomy,” concluding that doing so would constitute a “failure to 

appreciate the extent of the liberty at stake.” 539 U.S. at 

566-67. Just as it has done in the right-to-marry arena, the 

Court identified the right at issue in Lawrence as a matter of 

choice, explaining that gay and lesbian individuals—like all 
44

people—enjoy the right to make decisions regarding their 

personal relationships. Id. at 567. As we note above, the 

Court reiterated this theme in Windsor, in which it based its 

conclusion that section 3 of DOMA was unconstitutional, in part, 

on that provision’s disrespect for the “moral and sexual 

choices” that accompany a same-sex couple’s decision to marry. 

133 S. Ct. at 2694. Lawrence and Windsor indicate that the 

choices that individuals make in the context of same-sex 

relationships enjoy the same constitutional protection as the 

choices accompanying opposite-sex relationships. We therefore 

have no reason to suspect that the Supreme Court would accord 

the choice to marry someone of the same sex any less respect

than the choice to marry an opposite-sex individual who is of a 

different race, owes child support, or is imprisoned. 

Accordingly, we decline the Proponents’ invitation to 

characterize the right at issue in this case as the right to 

same-sex marriage rather than simply the right to marry.

Of course, “[b]y reaffirming the fundamental character of 

the right to marry, we do not mean to suggest that every state 

regulation which relates in any way to the incidents of or 

prerequisites for marriage must be subjected to rigorous 

scrutiny.” Zablocki, 434 U.S. at 386. Strict scrutiny applies 

only when laws “significantly interfere” with a fundamental 

right. See id. at 386-87. The Virginia Marriage Laws 
45

unquestionably satisfy this requirement: they impede the right 

to marry by preventing same-sex couples from marrying and 

nullifying the legal import of their out-of-state marriages. 

Strict scrutiny therefore applies in this case.

B.

Under strict scrutiny, a law “may be justified only by 

compelling state interests, and must be narrowly drawn to 

express only those interests.” Carey v. Population Servs. 

Int’l, 431 U.S. 678, 686 (1977). The Proponents bear the burden 

of demonstrating that the Virginia Marriage Laws satisfy this 

standard, see Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 

2411, 2420 (2013), and they must rely on the laws’ “actual 

purpose[s]” rather than hypothetical justifications, see Shaw v. 

Hunt, 517 U.S. 899, 908 n.4 (1996). The Proponents7 contend that 

five compelling interests undergird the Virginia Marriage Laws: 

(1) Virginia’s federalism-based interest in maintaining control 

over the definition of marriage within its borders, (2) the

history and tradition of opposite-sex marriage, (3) protecting 

the institution of marriage, (4) encouraging responsible 

 7 Although some of these arguments appear only in McQuigg’s 

briefs, we attribute them to the Proponents because Schaefer 

“reserved the right to adopt and incorporate in whole or in 

part” McQuigg’s discussion of the rationales underlying the 

Virginia Marriage Laws.
46

procreation, and (5) promoting the optimal childrearing 

environment. We discuss each of these interests in turn.

1. Federalism

The Constitution does not grant the federal government any 

authority over domestic relations matters, such as marriage. 

Accordingly, throughout our country’s history, states have 

enjoyed the freedom to define and regulate marriage as they see 

fit. See Windsor, 133 S. Ct. at 2691-92. States’ control over 

marriage laws within their borders has resulted in some 

variation among states’ requirements. For example, West 

Virginia prohibits first cousins from marrying, W. Va. Code 

§ 48-2-302, but the remaining states in this Circuit allow first 

cousin marriage, see Md. Code Ann., Fam. Law § 2-202; N.C. Gen. 

Stat. § 51-3; S.C. Code Ann. § 20-1-10; Va. Code Ann. § 20-38.1. 

States’ power to define and regulate marriage also accounts for 

their differing treatment of same-sex couples.

The Windsor decision rested in part on the Supreme Court’s 

respect for states’ supremacy in the domestic relations sphere.8 

 8 In Windsor, the Court did not label the type of 

constitutional scrutiny it applied, leaving us unsure how the 

Court would fit its federalism discussion within a traditional 

heightened scrutiny or rational basis analysis. The lower

courts have taken differing approaches, with some discussing 

Windsor and federalism as a threshold matter, see, e.g., Wolf, 

2014 WL 2558444, at *8-12; Bishop v. United States ex rel. 
47

The Court recognized that section 3 of DOMA upset the status quo 

by robbing states of their ability to define marriage. Although 

states could legalize same-sex marriage, they could not ensure 

that the incidents, benefits, and obligations of marriage would 

be uniform within their borders. See Windsor, 133 S. Ct. at 

2692. However, the Court did not lament that section 3 had 

usurped states’ authority over marriage due to its desire to 

safeguard federalism. Id. (“[T]he State’s power in defining the 

marital relation is of central relevance in this case quite 

apart from the principles of federalism.”). Its concern sprung 

from section 3’s creation of two classes of married couples 

within states that had legalized same-sex marriage: oppositesex couples, whose marriages the federal government recognized, 

and same-sex couples, whose marriages the federal government 

ignored. Id. The resulting injury to same-sex couples served 

as the foundation for the Court’s conclusion that section 3 

violated the Fifth Amendment’s Due Process Clause. Id. at 2693.

 

Holder, 962 F. Supp. 2d 1252, 1277-79 (N.D. Okla. 2014); Kitchen 

v. Herbert, 961 F. Supp. 2d 1181, 1193-94 (D. Utah 2013), and 

others—such as the district court in this case—considering 

federalism as a state interest underlying the same-sex marriage 

bans at issue, see, e.g., Latta, 2014 WL 1909999, at *25-26; 

DeBoer, 973 F. Supp. 2d at 773-75; Bostic, 970 F. Supp. 2d at 

475-77. Although we follow the district court’s lead and 

situate our federalism discussion within our application of 

strict scrutiny, our conclusion would remain the same even if we 

selected an alternate organizational approach.
48

Citing Windsor, the Proponents urge us to view Virginia’s 

federalism-based interest in defining marriage as a suitable 

justification for the Virginia Marriage Laws. However, Windsor

is actually detrimental to their position. Although the Court 

emphasized states’ traditional authority over marriage, it 

acknowledged that “[s]tate laws defining and regulating 

marriage, of course, must respect the constitutional rights of 

persons.” Id. at 2691 (citing Loving, 388 U.S. 1); see also id.

at 2692 (“The States’ interest in defining and regulating the 

marital relation[] [is] subject to constitutional guarantees.”). 

Windsor does not teach us that federalism principles can justify 

depriving individuals of their constitutional rights; it 

reiterates Loving’s admonition that the states must exercise 

their authority without trampling constitutional guarantees. 

Virginia’s federalism-based interest in defining marriage 

therefore cannot justify its encroachment on the fundamental 

right to marry.

The Supreme Court’s recent decision in Schuette v. 

Coalition to Defend Affirmative Action, 134 S. Ct. 1623 (2014), 

does not change the conclusion that Windsor dictates. In 

Schuette, the Court refused to strike down a voter-approved 

state constitutional amendment that barred public universities 

in Michigan from using race-based preferences as part of their 

admissions processes. Id. at 1629, 1638. The Court declined to 
49

closely scrutinize the amendment because it was not “used, or

. . . likely to be used, to encourage infliction of injury by 

reason of race.” See id. at 1638. Instead, the Court dwelled

on the need to respect the voters’ policy choice, concluding 

that “[i]t is demeaning to the democratic process to presume 

that the voters are not capable of deciding an issue of this 

sensitivity on decent and rational grounds” and the judiciary’s 

role was not to “disempower the voters from choosing which path 

to follow.” Id. at 1635-38.

The Proponents emphasize that Virginia’s voters approved 

the Marshall/Newman Amendment. Like the Michigan amendment at 

issue in Schuette, the Marshall/Newman Amendment is the 

codification of Virginians’ policy choice in a legal arena that 

is fraught with intense social and political debate. Americans’ 

ability to speak with their votes is essential to our democracy. 

But the people’s will is not an independent compelling interest 

that warrants depriving same-sex couples of their fundamental 

right to marry.

The very purpose of a Bill of Rights9 was to withdraw 

certain subjects from the vicissitudes of political 

 9 Of course, the Fourteenth Amendment is not part of the 

Bill of Rights. This excerpt from Barnette is nevertheless 

relevant here due to the Fourteenth Amendment’s similar goal of 

protecting unpopular minorities from government overreaching, 

see Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 293 (1978), 

and its role in rendering the Bill of Rights applicable to the 

states, see Duncan v. Louisiana, 391 U.S. 145, 147-48 (1968).
50

controversy, to place them beyond the reach of 

majorities and officials and to establish them as 

legal principles to be applied by the courts. One’s 

right to life, liberty, and property, to free speech, 

a free press, freedom of worship and assembly, and 

other fundamental rights may not be submitted to vote; 

they depend on the outcome of no elections.

W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943)

(footnote added); see also Romer, 517 U.S. at 623 (invalidating 

a voter-approved amendment to Colorado’s constitution); Lucas v. 

Forty-Fourth Gen. Assembly of Colo., 377 U.S. 713, 736-37 (1964) 

(“A citizen’s constitutional rights can hardly be infringed 

simply because a majority of the people choose that it be.”). 

Accordingly, neither Virginia’s federalism-based interest in 

defining marriage nor our respect for the democratic process 

that codified that definition can excuse the Virginia Marriage 

Laws’ infringement of the right to marry.

2. History and Tradition

The Proponents also point to the “history and tradition” of 

opposite-sex marriage as a compelling interest that supports the 

Virginia Marriage Laws. The Supreme Court has made it clear 

that, even under rational basis review, the “[a]ncient lineage 

of a legal concept does not give it immunity from attack.” 

Heller v. Doe ex rel. Doe, 509 U.S. 312, 326 (1993). The 

closely linked interest of promoting moral principles is 

similarly infirm in light of Lawrence: “the fact that the 
51

governing majority in a State has traditionally viewed a 

particular practice as immoral is not a sufficient reason for 

upholding a law prohibiting the practice; neither history nor 

tradition could save a law prohibiting miscegenation from 

constitutional attack.” 539 U.S. at 577-78 (quoting Bowers v. 

Hardwick, 478 U.S. 186, 216 (1986) (Stevens, J., dissenting))

(internal quotation marks omitted); see also id. at 601 (Scalia, 

J., dissenting) (“But ‘preserving the traditional institution of 

marriage’ is just a kinder way of describing the State’s moral 

disapproval of same-sex couples.”). Preserving the historical 

and traditional status quo is therefore not a compelling 

interest that justifies the Virginia Marriage Laws.

3. Safeguarding the Institution of Marriage

In addition to arguing that history and tradition are 

compelling interests in their own rights, the Proponents warn 

that deviating from the tradition of opposite-sex marriage will 

destabilize the institution of marriage. The Proponents suggest 

that legalizing same-sex marriage will sever the link between 

marriage and procreation: they argue that, if same-sex couples—

who cannot procreate naturally—are allowed to marry, the state 

will sanction the idea that marriage is a vehicle for adults’ 

emotional fulfillment, not simply a framework for parenthood. 

According to the Proponents, if adults are the focal point of 
52

marriage, “then no logical grounds reinforce stabilizing norms 

like sexual exclusivity, permanence, and monogamy,” which exist 

to benefit children.

We recognize that, in some cases, we owe “substantial 

deference to the predictive judgments” of the Virginia General 

Assembly, for whom the Proponents purport to speak. Turner 

Broad. Sys., Inc. v. FCC, 520 U.S. 180, 195 (1997). However, 

even if we view the Proponents’ theories through rose-colored 

glasses, we conclude that they are unfounded for two key 

reasons. First, the Supreme Court rejected the view that 

marriage is about only procreation in Griswold v. Connecticut, 

in which it upheld married couples’ right not to procreate and 

articulated a view of marriage that has nothing to do with 

children:

Marriage is a coming together for better or for worse, 

hopefully enduring, and intimate to the degree of 

being sacred. It is an association that promotes a way 

of life, not causes; a harmony in living, not 

political faiths; a bilateral loyalty, not commercial 

or social projects. Yet it is an association for as 

noble a purpose as any involved in our prior 

decisions.

381 U.S. at 485-86; see also Turner, 482 U.S. at 95-96 

(describing many non-procreative purposes of marriage). The 

fact that marriage’s stabilizing norms have endured in the five 

decades since the Supreme Court made this pronouncement weakens 
53

the argument that couples remain in monogamous marriages only 

for the sake of their offspring.

Second, the primary support that the Proponents offer for 

their theory is the legacy of a wholly unrelated legal change to 

marriage: no-fault divorce. Although no-fault divorce 

certainly altered the realities of married life by making it 

easier for couples to end their relationships, we have no reason 

to think that legalizing same-sex marriage will have a similar 

destabilizing effect. In fact, it is more logical to think that 

same-sex couples want access to marriage so that they can take 

advantage of its hallmarks, including faithfulness and 

permanence, and that allowing loving, committed same-sex couples 

to marry and recognizing their out-of-state marriages will 

strengthen the institution of marriage. We therefore reject the 

Proponents’ concerns.

4. Responsible Procreation

Next, the Proponents contend that the Virginia Marriage

Laws’ differentiation between opposite-sex and same-sex couples 

stems from the fact that unintended pregnancies cannot result 

from same-sex unions. By sanctioning only opposite-sex 

marriages, the Virginia Marriage Laws “provid[e] stability to 

the types of relationships that result in unplanned pregnancies, 

thereby avoiding or diminishing the negative outcomes often 
54

associated with unintended children.” The Proponents allege 

that children born to unwed parents face a “significant risk” of 

being raised in unstable families, which is harmful to their 

development. Virginia, “of course, has a duty of the highest 

order to protect the interests of minor children, particularly 

those of tender years.” Palmore v. Sidoti, 466 U.S. 429, 433 

(1984). However, the Virginia Marriage Laws are not 

appropriately tailored to further this interest.

If Virginia sought to ensure responsible procreation via 

the Virginia Marriage Laws, the laws are woefully 

underinclusive. Same-sex couples are not the only category of 

couples who cannot reproduce accidentally. For example, 

opposite-sex couples cannot procreate unintentionally if they 

include a post-menopausal woman or an individual with a medical 

condition that prevents unassisted conception.

The Proponents attempt to downplay the similarity between 

same-sex couples and infertile opposite-sex couples in three 

ways. First, they point out that sterile individuals could 

remedy their fertility through future medical advances. This 

potentiality, however, does not explain why Virginia should 

treat same-sex and infertile opposite-sex couples differently 

during the course of the latter group’s infertility. Second, 

the Proponents posit that, even if one member of a man-woman 

couple is sterile, the other member may not be. They suggest
55

that, without marriage’s monogamy mandate, this fertile 

individual is more likely to have an unintended child with a 

third party. They contend that, due to this possibility, even 

opposite-sex couples who cannot procreate need marriage to 

channel their procreative activity in a way that same-sex 

couples do not. The Proponents’ argument assumes that 

individuals in same-sex relationships never have opposite-sex 

sexual partners, which is simply not the case. Third, the 

Proponents imply that, by marrying, infertile opposite-sex 

couples set a positive example for couples who can have 

unintended children, thereby encouraging them to marry. We see 

no reason why committed same-sex couples cannot serve as similar 

role models. We therefore reject the Proponents’ attempts to 

differentiate same-sex couples from other couples who cannot 

procreate accidentally. Because same-sex couples and infertile 

opposite-sex couples are similarly situated, the Equal 

Protection Clause counsels against treating these groups 

differently. See City of Cleburne, 473 U.S. at 439 (explaining 

that the Equal Protection Clause “is essentially a direction 

that all persons similarly situated should be treated alike”).

Due to the Virginia Marriage Laws’ underinclusivity, this 

case resembles City of Cleburne v. Cleburne Living Center, Inc. 

In City of Cleburne, the Supreme Court struck down a city law 

that required group homes for the intellectually disabled to 
56

obtain a special use permit. Id. at 447-50. The city did not 

impose the same requirement on similar structures, such as 

apartment complexes and nursing homes. Id. at 447. The Court 

determined that the permit requirement was so underinclusive 

that the city’s motivation must have “rest[ed] on an irrational 

prejudice,” rendering the law unconstitutional. Id. at 450. In 

light of the Virginia Marriage Laws’ extreme underinclusivity, 

we are forced to draw the same conclusion in this case.

The Proponents’ responsible procreation argument falters 

for another reason as well. Strict scrutiny requires that a 

state’s means further its compelling interest. See Shaw, 517 

U.S. at 915 (“Although we have not always provided precise 

guidance on how closely the means . . . must serve the end (the 

justification or compelling interest), we have always expected 

that the legislative action would substantially address, if not 

achieve, the avowed purpose.”). Prohibiting same-sex couples 

from marrying and ignoring their out-of-state marriages does not 

serve Virginia’s goal of preventing out-of-wedlock births. 

Although same-sex couples cannot procreate accidentally, they 

can and do have children via other methods. According to an 

amicus brief filed by Dr. Gary J. Gates, as of the 2010 U.S. 

Census, more than 2500 same-sex couples were raising more than 

4000 children under the age of eighteen in Virginia. The 
57

Virginia Marriage Laws therefore increase the number of children 

raised by unmarried parents.

The Proponents acknowledge that same-sex couples become 

parents. They contend, however, that the state has no interest 

in channeling same-sex couples’ procreative activities into 

marriage because same-sex couples “bring children into their 

relationship[s] only through intentional choice and pre-planned 

action.” Accordingly, “[t]hose couples neither advance nor

threaten society’s public purpose for marriage”—stabilizing 

parental relationships for the benefit of children—“in the same 

manner, or to the same degree, that sexual relationships between 

men and women do.”

In support of this argument, the Proponents invoke the 

Supreme Court’s decision in Johnson v. Robison, 415 U.S. 361

(1974). Johnson concerned educational benefits that the federal 

government granted to military veterans who served on active 

duty. Id. at 363. The government provided these benefits to

encourage enlistment and make military service more palatable to 

existing servicemembers. Id. at 382-83. A conscientious 

objector—who refused to serve in the military for religious 

reasons—brought suit, contending that the government acted 

unconstitutionally by granting benefits to veterans but not 

conscientious objectors. Id. at 363-64. The Court explained 

that, “[w]hen, as in this case, the inclusion of one group 
58

promotes a legitimate governmental purpose, and the addition of 

other groups would not, we cannot say that the statute’s 

classification of beneficiaries and nonbeneficiaries is 

invidiously discriminatory.” Id. at 383. Because offering 

educational benefits to conscientious objectors would not 

incentivize military service, the federal government’s linedrawing was constitutional. Johnson, 415 U.S. at 382-83. The 

Proponents claim that treating opposite-sex couples differently 

from same-sex couples is equally justified because the two 

groups are not similarly situated with respect to their 

procreative potential.

Johnson applied rational basis review, id. at 374-75, so we 

strongly doubt its applicability to our strict scrutiny 

analysis. In any event, we can easily distinguish Johnson from 

the instant case. In Johnson, offering educational benefits to 

veterans who served on active duty promoted the government’s 

goal of making military service more attractive. Extending

those benefits to conscientious objectors, whose religious 

beliefs precluded military service, did not further that 

objective. By contrast, a stable marital relationship is 

attractive regardless of a couple’s procreative ability. 

Allowing infertile opposite-sex couples to marry does nothing to 

further the government’s goal of channeling procreative conduct 

into marriage. Thus, excluding same-sex couples from marriage
59

due to their inability to have unintended children makes little 

sense. Johnson therefore does not alter our conclusion that 

barring same-sex couples’ access to marriage does nothing to 

further Virginia’s interest in responsible procreation.

5. Optimal Childrearing

We now shift to discussing the merit of the final 

compelling interest that the Proponents invoke: optimal 

childrearing. The Proponents aver that “children develop best 

when reared by their married biological parents in a stable 

family unit.” They dwell on the importance of “genderdifferentiated parenting” and argue that sanctioning same-sex 

marriage will deprive children of the benefit of being raised by 

a mother and a father, who have “distinct parenting styles.” In 

essence, the Proponents argue that the Virginia Marriage Laws 

safeguard children by preventing same-sex couples from marrying 

and starting inferior families.

The Opponents and their amici cast serious doubt on the 

accuracy of the Proponents’ contentions. For example, as the 

American Psychological Association, American Academy of 

Pediatrics, American Psychiatric Association, National 

Association of Social Workers, and Virginia Psychological 

Association (collectively, the APA) explain in their amicus 

brief, “there is no scientific evidence that parenting 
60

effectiveness is related to parental sexual orientation,” and 

“the same factors”—including family stability, economic 

resources, and the quality of parent-child relationships—“are 

linked to children’s positive development, whether they are 

raised by heterosexual, lesbian, or gay parents.” According to 

the APA, “the parenting abilities of gay men and lesbians—and 

the positive outcomes for their children—are not areas where 

most credible scientific researchers disagree,” and the contrary 

studies that the Proponents cite “do not reflect the current 

state of scientific knowledge.” See also DeBoer, 973 F. Supp. 

2d at 760-68 (making factual findings and reaching the same 

conclusion). In fact, the APA explains that, by preventing 

same-sex couples from marrying, the Virginia Marriage Laws 

actually harm the children of same-sex couples by stigmatizing 

their families and robbing them of the stability, economic 

security, and togetherness that marriage fosters. The Supreme 

Court reached a similar conclusion in Windsor, in which it 

observed that failing to recognize same-sex marriages 

“humiliates tens of thousands of children now being raised by 

same-sex couples” and “makes it even more difficult for the 

children to understand the integrity and closeness of their own 

family and its concord with other families in their community 

and in their daily lives.” 133 S. Ct. at 2694.
61

We find the arguments that the Opponents and their amici 

make on this issue extremely persuasive. However, we need not 

resolve this dispute because the Proponents’ optimal 

childrearing argument falters for at least two other reasons. 

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 
62

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. All of the Proponents’ justifications for the Virginia 

Marriage Laws therefore fail, and the laws cannot survive strict 

scrutiny.

V.

For the foregoing reasons, we conclude that the Virginia 

Marriage Laws violate the Due Process and Equal Protection 

Clauses of the Fourteenth Amendment to the extent that they 

prevent same-sex couples from marrying and prohibit Virginia 

from recognizing same-sex couples’ lawful out-of-state 

marriages. We therefore affirm the district court’s grant of 

the Plaintiffs’ motion for summary judgment and its decision to 

enjoin enforcement of the Virginia Marriage Laws.10

 10 Because we are able to resolve the merits of the 

Opponents’ claims, we need not consider their alternative 

request for a preliminary injunction. We assume that the 

district court’s decision to enjoin enforcement of the Virginia 

Marriage Laws encompassed a permanent injunction, which the 

Plaintiffs requested in connection with their motion for summary 

judgment.
63

We recognize that same-sex marriage makes some people 

deeply uncomfortable. However, inertia and apprehension are 

not legitimate bases for denying same-sex couples due process 

and equal protection of the laws. Civil marriage is one of the 

cornerstones of our way of life. It allows individuals to 

celebrate and publicly declare their intentions to form lifelong 

partnerships, which provide unparalleled intimacy,

companionship, emotional support, and security. The choice of 

whether and whom to marry is an intensely personal decision that 

alters the course of an individual’s life. Denying same-sex 

couples this choice prohibits them from participating fully in 

our society, which is precisely the type of segregation that the 

Fourteenth Amendment cannot countenance.

AFFIRMED
NIEMEYER, Circuit Judge, dissenting:

To be clear, this case is not about whether courts favor or 

disfavor same-sex marriage, or whether States recognizing or 

declining to recognize same-sex marriage have made good policy 

decisions. It is much narrower. It is about whether a State’s 

decision not to recognize same-sex marriage violates the 

Fourteenth Amendment of the U.S. Constitution. Thus, the 

judicial response must be limited to an analysis applying 

established constitutional principles.

The Commonwealth of Virginia has always recognized that 

“marriage” is based on the “mutual agreement of a man and a 

woman to marry each other,” Burke v. Shaver, 23 S.E. 749, 749 

(Va. 1895), and that a marriage’s purposes include “establishing 

a family, the continuance of the race, the propagation of 

children, and the general good of society,” Alexander v. 

Kuykendall, 63 S.E.2d 746, 748 (Va. 1951). In recent years, it 

codified that understanding in several statutes, which also 

explicitly exclude from the definition of “marriage” the union 

of two men or two women. Moreover, in 2006 the people of 

Virginia amended the Commonwealth’s Constitution to define 

marriage as only between “one man and one woman.” Va. Const. 

art. I, § 15-A.

The plaintiffs, who are in long-term same-sex 

relationships, are challenging the constitutionality of 
65

Virginia’s marriage laws under the Due Process and Equal 

Protection Clauses of the U.S. Constitution. The district court 

sustained their challenge, concluding that the plaintiffs have a 

fundamental right to marry each other under the Due Process 

Clause of the Fourteenth Amendment and therefore that any 

regulation of that right is subject to strict scrutiny. 

Concluding that Virginia’s definition of marriage failed even 

“to display a rational relationship to a legitimate purpose and 

so must be viewed as constitutionally infirm,” the court struck 

down Virginia’s marriage laws as unconstitutional and enjoined 

their enforcement. Bostic v. Rainey, 970 F. Supp. 2d 456, 482 

(E.D. Va. 2014).

The majority agrees. It concludes that the fundamental 

right to marriage includes a right to same-sex marriage and that 

therefore Virginia’s marriage laws must be reviewed under strict 

scrutiny. It holds that Virginia has failed to advance a 

compelling state interest justifying its definition of marriage 

as between only a man and a woman. In reaching this conclusion, 

however, the majority has failed to conduct the necessary 

constitutional analysis. Rather, it has simply declared 

syllogistically that because “marriage” is a fundamental right 

protected by the Due Process Clause and “same-sex marriage” is a 

form of marriage, Virginia’s laws declining to recognize same-
66

sex marriage infringe the fundamental right to marriage and are 

therefore unconstitutional.

Stated more particularly, the majority’s approach begins 

with the parties’ agreement that “marriage” is a fundamental 

right. Ante at 40. From there, the majority moves to the 

proposition that “the right to marry is an expansive liberty 

interest,” ante at 41, “that is not circumscribed based on the 

characteristics of the individuals seeking to exercise that 

right,” ante at 42-43. For support, it notes that the Supreme 

Court has struck down state restrictions prohibiting interracial 

marriage, see Loving v. Virginia, 388 U.S. 1 (1967); prohibiting 

prison inmates from marrying without special approval, see

Turner v. Safley, 482 U.S. 78 (1987); and prohibiting persons 

owing child support from marrying, see Zablocki v. Redhail, 434 

U.S. 374 (1978). It then declares, ipse dixit, that “the 

fundamental right to marry encompasses the right to same-sex 

marriage” and is thus protected by the substantive component of 

the Due Process Clause. Ante at 41. In reaching this 

conclusion, the majority “decline[s] the Proponents’ invitation 

to characterize the right at issue in this case as the right to 

same-sex marriage rather than simply the right to marry.” Ante

at 44. And in doing so, it explicitly bypasses the relevant 

constitutional analysis required by Washington v. Glucksberg, 

521 U.S. 702 (1997), stating that a Glucksberg analysis is not 
67

necessary because no new fundamental right is being recognized. 

Ante at 41-42.

This analysis is fundamentally flawed because it fails to 

take into account that the “marriage” that has long been 

recognized by the Supreme Court as a fundamental right is 

distinct from the newly proposed relationship of a “same-sex 

marriage.” And this failure is even more pronounced by the 

majority’s acknowledgment that same-sex marriage is a new notion 

that has not been recognized “for most of our country’s 

history.” Ante at 41. Moreover, the majority fails to explain 

how this new notion became incorporated into the traditional 

definition of marriage except by linguistic manipulation. Thus, 

the majority never asks the question necessary to finding a 

fundamental right -- whether same-sex marriage is a right that 

is “deeply rooted in this Nation’s history and tradition” and 

“implicit in the concept of ordered liberty, such that neither 

liberty nor justice would exist if [it was] sacrificed.” 

Glucksberg, 521 U.S. at 721 (quoting Moore v. East Cleveland, 

431 U.S. 494, 503 (1977) (plurality opinion); Palko v. 

Connecticut, 302 U.S. 319, 325-26 (1937)) (internal quotation 

marks omitted).

At bottom, in holding that same-sex marriage is encompassed 

by the traditional right to marry, the majority avoids the 

necessary constitutional analysis, concluding simply and broadly 
68

that the fundamental “right to marry” -- by everyone and to 

anyone -- may not be infringed. And it does not anticipate or 

address the problems that this approach causes, failing to 

explain, for example, why this broad right to marry, as the 

majority defines it, does not also encompass the “right” of a 

father to marry his daughter or the “right” of any person to 

marry multiple partners.

If the majority were to recognize and address the 

distinction between the two relationships -- the traditional one 

and the new one -- as it must, it would simply be unable to 

reach the conclusion that it has reached.

I respectfully submit that, for the reasons that follow, 

Virginia was well within its constitutional authority to adhere 

to its traditional definition of marriage as the union of a man 

and a woman and to exclude from that definition the union of two 

men or two women. I would also agree that the U.S. Constitution 

does not prohibit a State from defining marriage to include 

same-sex marriage, as many States have done. Accordingly, I 

would reverse the judgment of the district court and uphold 

Virginia’s marriage laws.

I

As the majority has observed, state recognition of same-sex 

marriage is a new phenomenon. Its history began in the early 
69

2000s with the recognition in some States of civil unions. See, 

e.g., Vt. Stat. Ann. tit. 15, §§ 1201-1202 (2000); D.C. Code § 

32-701 (1992) (effective in 2002); Cal. Fam. Code §§ 297-298 

(2003); N.J. Stat. Ann. § 26:8A-2 (2003); Conn. Gen. Stat. Ann. 

§ 46b-38nn (2006), invalidated by Kerrigan v. Comm’r of Pub. 

Health, 957 A.2d 407 (Conn. 2008). And the notion of same-sex 

marriage itself first gained traction in 2003, when the 

Massachusetts Supreme Judicial Court held that the 

Commonwealth’s prohibition on issuing marriage licenses to samesex couples violated the State’s Constitution -- the first 

decision holding that same-sex couples had a right to marry. 

See Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 968 

(Mass. 2003). In 2009, Vermont became the first State to enact 

legislation recognizing same-sex marriage, and, since then, 11 

other States and the District of Columbia have also done so. 

See Conn. Gen. Stat. §§ 46b-20 to 46b-20a; Del. Code Ann. tit. 

13, § 101; D.C. Code § 46-401; Haw. Rev. Stat. § 572-1; 750 Ill. 

Comp. Stat. 5/201; Me. Rev. Stat. tit. 19-A, § 650-A; Md. Code

Ann., Fam. Law §§ 2-201 to 2-202; Minn. Stat. Ann. §§ 517.01 to 

517.03; N.H. Rev. Stat. Ann. §§ 457:1-a to 457:2; N.Y. Dom. Rel. 

Law § 10-a; R.I. Gen. Laws § 15-1-1 et seq.; Vt. Stat. Ann. tit. 

15, § 8; Wash. Rev. Code §§ 26.04.010 to 26.04.020. Moreover, 

seven other States currently allow same-sex marriage as a result 

of court rulings. See Hollingsworth v. Perry, 133 S. Ct. 2652 
70

(2013); Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009); Goodridge, 

798 N.E.2d 941; Garden State Equality v. Dow, 79 A.3d 1036 (N.J. 

2013); Griego v. Oliver, 316 P.3d 865 (N.M. 2013); Geiger v. 

Kitzhaber, ___ F. Supp. 2d ___, No. 6:13-CV-01834-MC, 2014 WL 

2054264 (D. Or. May 19, 2014); Whitewood v. Wolf, ___ F. Supp.

2d ___, No. 1:13-CV-1861, 2014 WL 2058105 (M.D. Pa. May 20, 

2014). This is indeed a recent phenomenon.

Virginia only recognizes marriage as between one man and 

one woman, and, like a majority of States, it has codified this 

view. See Va. Code Ann. § 20-45.2 (prohibiting same-sex 

marriage and declining to recognize same-sex marriages conducted 

in other States); id. § 20-45.3 (prohibiting civil unions and 

similar arrangements between persons of the same sex). The bill 

originally proposing what would become § 20-45.3 noted the basis 

for Virginia’s legislative decision:

[H]uman marriage is a consummated two in one communion 

of male and female persons made possible by sexual 

differences which are reproductive in type, whether or 

not they are reproductive in effect or motivation. 

This present relationship recognizes the equality of 

male and female persons, and antedates recorded 

history.

Affirmation of Marriage Act, H.D. 751, 2004 Gen. Assembly, Reg. 

Sess. (Va. 2004). The bill predicted that the recognition of 

same-sex marriage would “radically transform the institution of 

marriage with serious and harmful consequences to the social 

order.” Id. Virginia also amended its Constitution in 2006 to 
71

define marriage as only between “one man and one woman” and to 

prohibit “a legal status for relationships of unmarried 

individuals that intends to approximate the design, qualities, 

significance, or effects of marriage.” Va. Const. art. I, § 15-

A. The plaintiffs commenced this action to challenge the 

constitutionality of Virginia’s marriage laws.

Plaintiffs Timothy B. Bostic and Tony C. London have lived 

in a committed same-sex relationship since 1989 and have lived 

in Virginia since 1991. The two desired to marry in Virginia, 

and on July 1, 2013, when they applied for a marriage license at 

the office of the Clerk of the Circuit Court for the City of 

Norfolk, they were denied a license and told that same-sex 

couples are ineligible to marry in Virginia. In their complaint 

challenging Virginia’s marriage laws, they alleged that their 

inability to marry has disadvantaged them in both economic and 

personal ways -- it has prevented them from filing joint tax 

returns, kept them from sharing health insurance on a tax-free 

basis, and signaled that they are “less than” other couples in 

Virginia.

Plaintiffs Carol Schall and Mary Townley likewise have 

lived in a committed same-sex relationship since 1985 and have 

lived in Virginia throughout their 29-year relationship. In 

1998, Townley gave birth to a daughter, E.S.-T., whom Schall and 

Townley have raised together, and in 2008, the two traveled to 
72

California where they were lawfully married. They alleged in 

their complaint that because Virginia does not recognize their 

marriage as valid, they have been injured in several ways. 

Schall is unable to legally adopt E.S.-T., and the two are 

unable to share health insurance on a tax-free basis. The two 

also claimed that they and E.S.-T. have experienced stigma as a 

result of Virginia’s nonrecognition of their marriage.

The plaintiffs’ complaint, filed in July 2013, alleged that 

Virginia’s marriage laws violate their constitutional rights 

under the Due Process and Equal Protection Clauses of the 

Fourteenth Amendment. They named as defendants George E.

Schaefer, III, Clerk of Court for the Norfolk Circuit Court, and 

Janet M. Rainey, the State Registrar of Vital Records. A third 

Virginia official, Michèle B. McQuigg, Clerk of Court for the 

Prince William County Circuit Court, was permitted to intervene 

as a defendant. As elected circuit court clerks, Schaefer and 

McQuigg are responsible for issuing individual marriage licenses 

in the localities in which they serve. And Rainey, as the State 

Registrar of Vital Records, is responsible for ensuring 

compliance with Virginia’s marriage laws, including the laws 

challenged in this case.

After the parties filed cross-motions for summary judgment, 

Virginia underwent a change in administrations, and the newly 

elected Attorney General of Virginia, Mark Herring, filed a 
73

notice of a change in his office’s legal position on behalf of 

his client, defendant Janet Rainey. His notice stated that 

because, in his view, the laws at issue were unconstitutional, 

his office would no longer defend them on behalf of Rainey. He 

noted, however, that Rainey would continue to enforce the laws 

until the court’s ruling. The other officials have continued to 

defend Virginia’s marriage laws, and, for convenience, I refer 

to the defendants herein as “Virginia.”

Following a hearing, the district court, by an order and 

memorandum dated February 14, 2014, granted the plaintiffs’ 

motion for summary judgment and denied Virginia’s cross-motion. 

The court concluded that same-sex partners have a fundamental 

right to marry each other under the Due Process Clause of the 

Fourteenth Amendment, thus requiring that Virginia’s marriage 

laws restricting that right be narrowly drawn to further a 

compelling state interest. It concluded that the laws did not 

meet that requirement and, indeed, “fail[ed] to display a 

rational relationship to a legitimate purpose, and so must be 

viewed as constitutionally infirm under even the least onerous 

level of scrutiny.” Bostic, 970 F. Supp. 2d at 482. Striking 

down Virginia’s marriage laws, the court also issued an order 

enjoining their enforcement but stayed that order pending 

appeal. This appeal followed.
74

II

The plaintiffs contend that, as same-sex partners, they 

have a fundamental right to marry that is protected by the 

substantive component of the Due Process Clause of the U.S. 

Constitution, U.S. Const. amend. XIV, § 1 (prohibiting any State 

from depriving “any person of life, liberty, or property, 

without due process of law”), and that Virginia’s laws defining 

marriage as only between a man and a woman and excluding samesex marriage infringe on that right. The constitutional 

analysis for adjudging their claim is well established.

The Constitution contains no language directly protecting 

the right to same-sex marriage or even traditional marriage. 

Any right to same-sex marriage, therefore, would have to be 

found, through court interpretation, as a substantive component 

of the Due Process Clause. See Planned Parenthood of 

Southeastern Pa. v. Casey, 505 U.S. 833, 846 (1992) (“Although a 

literal reading of the Clause might suggest that it governs only 

the procedures by which a State may deprive persons of liberty, 

for at least 105 years . . . the Clause has been understood to 

contain a substantive component as well”).

The substantive component of the Due Process Clause only 

protects “fundamental” liberty interests. And the Supreme Court 

has held that liberty interests are only fundamental if they 

are, “objectively, ‘deeply rooted in this Nation’s history and 
75

tradition,’ and ‘implicit in the concept of ordered liberty,’ 

such that ‘neither liberty nor justice would exist if they were 

sacrificed.’” Glucksberg, 521 U.S. at 720-21 (citation omitted) 

(quoting Moore, 431 U.S. at 503 (plurality opinion); Palko, 302 

U.S. at 325-26). When determining whether such a fundamental 

right exists, a court must always make “a ‘careful description’ 

of the asserted fundamental liberty interest.” Id. at 721 

(emphasis added) (quoting Reno v. Flores, 507 U.S. 292, 302 

(1993)). This “careful description” involves characterizing the 

right asserted in its narrowest terms. Thus, in Glucksberg, 

where the Court was presented with a due process challenge to a 

state statute banning assisted suicide, the Court narrowly 

characterized the right being asserted in the following manner:

The Court of Appeals stated that “[p]roperly analyzed, 

the first issue to be resolved is whether there is a 

liberty interest in determining the time and manner of 

one’s death,” or, in other words, “[i]s there a right 

to die?” Similarly, respondents assert a “liberty to 

choose how to die” and a right to “control of one’s 

final days,” and describe the asserted liberty as “the 

right to choose a humane, dignified death,” and “the 

liberty to shape death.” As noted above, we have a 

tradition of carefully formulating the interest at 

stake in substantive-due-process cases. . . . The 

Washington statute at issue in this case prohibits 

“aid[ing] another person to attempt suicide,” and, 

thus, the question before us is whether the “liberty” 

specially protected by the Due Process Clause includes 

a right to commit suicide which itself includes a 

right to assistance in doing so.

Glucksberg, 521 U.S. at 722-23 (alterations in original) 

(emphasis added) (citations omitted).
76

Under this formulation, because the Virginia laws at issue 

prohibit “marriage between persons of the same sex,” Va. Code 

Ann. § 20-45.2, “the question before us is whether the ‘liberty’ 

specially protected by the Due Process Clause includes a right” 

to same-sex marriage. Glucksberg, 521 U.S. at 723; see also

Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1095 (D. Haw. 

2012) (“[M]issing from Plaintiffs’ asserted ‘right to marry the 

person of one’s choice’ is its centerpiece: the right to marry 

someone of the same gender”).

When a fundamental right is so identified, then any statute 

restricting the right is subject to strict scrutiny and must be 

“narrowly tailored to serve a compelling state interest.” 

Flores, 507 U.S. at 302. Such scrutiny is extremely difficult 

for a law to withstand, and, as such, the Supreme Court has 

noted that courts must be extremely cautious in recognizing 

fundamental rights because doing so ordinarily removes freedom 

of choice from the hands of the people:

[W]e “ha[ve] always been reluctant to expand the 

concept of substantive due process because guideposts 

for responsible decisionmaking in this unchartered 

area are scarce and open-ended.” By extending 

constitutional protection to an asserted right or 

liberty interest, we, to a great extent, place the 

matter outside the arena of public debate and 

legislative action. We must therefore “exercise the 

utmost care whenever we are asked to break new ground 

in this field,” lest the liberty protected by the Due 

Process Clause be subtly transformed into the policy 

preferences of the Members of this Court.
77

Glucksberg, 521 U.S. at 720 (second alteration in original)

(emphasis added) (quoting Collins v. City of Harker Heights, 503 

U.S. 115, 125 (1992)).

The plaintiffs in this case, as well as the majority, 

recognize that narrowly defining the asserted liberty interest 

would require them to demonstrate a new fundamental right to 

same-sex marriage, which they cannot do. Thus, they have made 

no attempt to argue that same-sex marriage is, “objectively, 

deeply rooted in this Nation’s history and tradition,” and 

“implicit in the concept of ordered liberty.” Glucksberg, 521 

U.S. at 720-21 (internal quotation marks omitted). Indeed, they 

have acknowledged that recognition of same-sex marriage is a 

recent development. See ante at 41; see also United States v. 

Windsor, 133 S. Ct. 2675, 2689 (2013) (“Until recent years, many 

citizens had not even considered the possibility of [same-sex 

marriage]” (emphasis added)); id. at 2715 (Alito, J., 

dissenting) (noting that it is “beyond dispute that the right to 

same-sex marriage is not deeply rooted in this Nation’s history 

and tradition”); Baehr v. Lewin, 852 P.2d 44, 57 (Haw. 1993)

(“[W]e do not believe that a right to same-sex marriage is so 

rooted in the traditions and collective conscience of our people 

that failure to recognize it would violate the fundamental 

principles of liberty and justice that lie at the base of all 

our civil and political institutions”).
78

Instead, the plaintiffs and the majority argue that the 

fundamental right to marriage that has previously been 

recognized by the Supreme Court is a broad right that should 

apply to the plaintiffs without the need to recognize a new 

fundamental right to same-sex marriage. They argue that this 

approach is supported by the fact that the Supreme Court did not 

narrowly define the right to marriage in its decisions in 

Loving, 388 U.S. at 12; Turner, 482 U.S. at 94-96; or Zablocki, 

434 U.S. at 383-86.

It is true that, in those cases, the Court did not 

recognize new, separate fundamental rights to fit the factual 

circumstances in each case. For example, in Loving, the Court 

did not examine whether interracial marriage was, objectively, 

deeply rooted in our Nation’s history and tradition. But it was 

not required to do so. Each of those cases involved a couple 

asserting a right to enter into a traditional marriage of the 

type that has always been recognized since the beginning of the 

Nation -- a union between one man and one woman. While the 

context for asserting the right varied in each of those cases, 

it varied only in ways irrelevant to the concept of marriage. 

The type of relationship sought was always the traditional, manwoman relationship to which the term “marriage” was theretofore 

always assumed to refer. Thus, none of the cases cited by the 

plaintiffs and relied on by the majority involved the assertion 
79

of a brand new liberty interest. To the contrary, they involved 

the assertion of one of the oldest and most fundamental liberty 

interests in our society.

To now define the previously recognized fundamental right 

to “marriage” as a concept that includes the new notion of 

“same-sex marriage” amounts to a dictionary jurisprudence, which 

defines terms as convenient to attain an end.

It is true that same-sex and opposite-sex relationships 

share many attributes, and, therefore, marriages involving those 

relationships would, to a substantial extent, be similar. Two 

persons who are attracted to each other physically and 

emotionally and who love each other could publicly promise to 

live with each other thereafter in a mutually desirable 

relationship. These aspects are the same whether the persons 

are of the same sex or different sexes. Moreover, both 

relationships could successfully function to raise children, 

although children in a same-sex relationship would come from one 

partner or from adoption. But there are also significant 

distinctions between the relationships that can justify 

differential treatment by lawmakers.

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. 
80

Every person’s identity includes the person’s particular 

biological relationships, which create unique and meaningful 

bonds of kinship that are extraordinarily strong and enduring 

and that have been afforded a privileged place in political 

order throughout human history. Societies have accordingly 

enacted laws promoting the family unit -- such as those relating 

to sexual engagement, marriage rites, divorce, inheritance, name 

and title, and economic matters. And many societies have found 

familial bonds so critical that they have elevated marriage to 

be a sacred institution trapped with religious rituals. In 

these respects, the traditional man-woman relationship is 

unique.

Thus, when the Supreme Court has recognized, through the 

years, that the right to marry is a fundamental right, it has 

emphasized the procreative and social ordering aspects of 

traditional marriage. For example, it has said: “[Marriage] is 

an institution, in the maintenance of which in its purity the 

public is deeply interested, for it is the foundation of the 

family and of society, without which there would be neither 

civilization nor progress,” Maynard v. Hill, 125 U.S. 190, 211 

(1888) (emphasis added); Marriage is “one of the basic civil 

rights of man. Marriage and procreation are fundamental to the 

very existence and survival of the race,” Skinner v. Oklahoma ex 

rel. Williamson, 316 U.S. 535, 541 (1942); “It is not surprising 
81

that the decision to marry has been placed on the same level of 

importance as decisions relating to procreation, childbirth, 

childrearing, and family relationships. . . . [Marriage] is the 

foundation of the family in our society,” Zablocki, 434 U.S. at 

386.

Because there exist deep, fundamental differences between 

traditional and same-sex marriage, the plaintiffs and the 

majority err by conflating the two relationships under the 

loosely drawn rubric of “the right to marriage.” Rather, to 

obtain constitutional protection, they would have to show that 

the right to same-sex marriage is itself deeply rooted in our 

Nation’s history. They have not attempted to do so and could 

not succeed if they were so to attempt.

In an effort to bridge the obvious differences between the 

traditional relationship and the new same-sex relationship, the 

plaintiffs argue that the fundamental right to marriage “has 

always been based on, and defined by, the constitutional liberty 

to select the partner of one’s choice.” (Emphasis added). They 

rely heavily on Loving to assert this claim. In Loving, the 

Court held that a state regulation restricting interracial 

marriage infringed on the fundamental right to marriage. 

Loving, 388 U.S. at 12. But nowhere in Loving did the Court 

suggest that the fundamental right to marry includes the 

unrestricted right to marry whomever one chooses, as the
82

plaintiffs claim. Indeed, Loving explicitly relied on Skinner

and Murphy, and both of those cases discussed marriage in 

traditional, procreative terms. Id.

This reading of Loving is fortified by the Court’s summary 

dismissal of Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), 

appeal dismissed, 409 U.S. 810 (1972), just five years after 

Loving was decided. In Baker, the Minnesota Supreme Court 

interpreted a state statute’s use of the term “marriage” to be 

one of common usage meaning a union “between persons of the 

opposite sex” and thus not including same-sex marriage. Id. at 

186. On appeal, the Supreme Court dismissed the case summarily 

“for want of a substantial federal question.” 409 U.S. at 810. 

The Court’s action in context indicates that the Court did not 

view Loving or the cases that preceded it as providing a 

fundamental right to an unrestricted choice of marriage partner. 

Otherwise, the state court’s decision in Baker would indeed have 

presented a substantial federal question.

In short, Loving simply held that race, which is completely 

unrelated to the institution of marriage, could not be the basis 

of marital restrictions. See Loving, 388 U.S. at 12. To 

stretch Loving’s holding to say that the right to marry is not 

limited by gender and sexual orientation is to ignore the 

inextricable, biological link between marriage and procreation 

that the Supreme Court has always recognized. See Windsor, 133 
83

S. Ct. at 2689 (recognizing that throughout history, “marriage 

between a man and a woman no doubt had been thought of by most 

people as essential to the very definition of that term and to 

its role and function”). The state regulation struck down in 

Loving, like those in Zablocki and Turner, had no relationship 

to the foundational purposes of marriage, while the gender of 

the individuals in a marriage clearly does. Thus, the majority 

errs, as did the district court, by interpreting the Supreme 

Court’s marriage cases as establishing a right that includes 

same-sex marriage.

The plaintiffs also largely ignore the problem with their 

position that if the fundamental right to marriage is based on 

“the constitutional liberty to select the partner of one’s 

choice,” as they contend, then that liberty would also extend to 

individuals seeking state recognition of other types of 

relationships that States currently restrict, such as polygamous 

or incestuous relationships. Cf. Romer v. Evans, 517 U.S. 620, 

648-50 (1996) (Scalia, J., dissenting). Such an extension would 

be a radical shift in our understanding of marital 

relationships. Laws restricting polygamy are foundational to 

the Union itself, having been a condition on the entrance of 

Arizona, New Mexico, Oklahoma, and Utah into statehood. Id. 

While the plaintiffs do attempt to assure us that such laws are 

safe because “there are weighty government interests underlying” 
84

them, such an argument does not bear on the question of whether 

the right is fundamental. The government’s interests would 

instead be relevant only to whether the restriction could meet 

the requisite standard of review. And because laws prohibiting 

polygamous or incestuous marriages restrict individuals’ right 

to choose whom they would like to marry, they would, under the 

plaintiffs’ approach, have to be examined under strict scrutiny. 

Perhaps the government’s interest would be strong enough to 

enable such laws to survive strict scrutiny, but regardless, 

today’s decision would truly be a sweeping one if it could be 

understood to mean that individuals have a fundamental right to 

enter into a marriage with any person, or any people, of their 

choosing.

At bottom, the fundamental right to marriage does not 

include a right to same-sex marriage. Under the Glucksberg

analysis that we are thus bound to conduct, there is no new 

fundamental right to same-sex marriage. Virginia’s laws 

restricting marriage to man-woman relationships must therefore 

be upheld if there is any rational basis for the laws.

III

Under rational-basis review, courts are required to give 

heavy deference to legislatures. The standard

simply requires courts to determine whether the 

classification in question is, at a minimum, 
85

rationally related to legitimate governmental goals. 

In other words, the fit between the enactment and the 

public purposes behind it need not be mathematically 

precise. As long as [the legislature] has a 

reasonable basis for adopting the classification, 

which can include “rational speculation unsupported by 

evidence or empirical data,” the statute will pass 

constitutional muster. The rational basis standard 

thus embodies an idea critical to the continuing 

vitality of our democracy: that courts are not 

empowered to “sit as a superlegislature to judge the 

wisdom or desirability of legislative policy 

determinations.”

Wilkins v. Gaddy, 734 F.3d 344, 347-48 (4th Cir. 2013) (emphasis 

added) (citations omitted) (quoting FCC v. Beach Commc’ns, Inc., 

508 U.S. 307, 315 (1993); City of New Orleans v. Dukes, 427 U.S. 

297, 303 (1976)). Statutes subject to rational-basis review 

“bear[] a strong presumption of validity, and those attacking 

the rationality of the legislative classification have the 

burden ‘to negative every conceivable basis which might support 

[them].’” Beach Commc’ns, 508 U.S. at 314-15 (emphasis added) 

(citation omitted) (quoting Lehnhausen v. Lake Shore Auto Parts 

Co., 410 U.S. 356, 364 (1973)).

In contending that there is a rational basis for its 

marriage laws, Virginia has emphasized that children are born 

only to one man and one woman and that marriage provides a 

family structure by which to nourish and raise those children. 

It claims that a biological family is a more stable environment, 

and it renounces any interest in encouraging same-sex marriage. 

It argues that the purpose of its marriage laws “is to channel 
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the presumptive procreative potential of man-woman relationships 

into enduring marital unions so that if any children are born, 

they are more likely to be raised in stable family units.” 

(Emphasis omitted). Virginia highlights especially marriage’s 

tendency to promote stability in the event of unplanned 

pregnancies, asserting that it has “a compelling interest in 

addressing the particular concerns associated with the birth of 

unplanned children. . . . [C]hildren born from unplanned 

pregnancies where their mother and father are not married to 

each other are at significant risk of being raised outside 

stable family units headed by their mother and father jointly.”

Virginia states that its justifications for promoting 

traditional marriage also explain its lack of interest in 

promoting same-sex marriage. It maintains that a traditional 

marriage is “exclusively [an] opposite-sex institution 

. . . inextricably linked to procreation and biological 

kinship,” Windsor, 133 S. Ct. at 2718 (Alito, J., dissenting), 

and that same-sex marriage prioritizes the emotions and sexual 

attractions of the two partners without any necessary link to 

reproduction. It asserts that it has no interest in “licensing 

adults’ love.”

The plaintiffs accept that family stability is a legitimate 

state goal, but they argue that licensing same-sex relationships 

will not burden Virginia’s achievement of that goal. They 
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contend that “there is simply no evidence or reason to believe 

that prohibiting gay men and lesbians from marrying will 

increase ‘responsible procreation’ among heterosexuals.”

But this argument does not negate any of the rational 

justifications for Virginia’s legislation. States are permitted 

to selectively provide benefits to only certain groups when

providing those same benefits to other groups would not further 

the State’s ultimate goals. See Johnson v. Robinson, 415 U.S. 

361, 383 (1974) (“When . . . the inclusion of one group promotes 

a legitimate governmental purpose, and the addition of other 

groups would not, we cannot say that the statute's 

classification of beneficiaries and nonbeneficiaries is 

invidiously discriminatory”). Here, the Commonwealth’s goal of 

ensuring that unplanned children are raised in stable homes is 

furthered only by offering the benefits of marriage to oppositesex couples. As Virginia correctly asserts, “the relevant 

inquiry here is not whether excluding same-sex couples from 

marriage furthers [Virginia’s] interest in steering man-woman 

couples into marriage.” Rather, the relevant inquiry is whether 

also recognizing same-sex marriages would further Virginia’s 

interests. With regard to its interest in ensuring stable 

families in the event of unplanned pregnancies, it would not.

The plaintiffs reply that even if this is so, such “linedrawing” only makes sense if the resources at issue are scarce, 
88

justifying the State’s limited provision of those resources. 

They argue that because “[m]arriage licenses . . . are not a 

remotely scarce commodity,” the line-drawing done by Virginia’s 

marriage laws is irrational. But this fundamentally 

misunderstands the nature of marriage benefits. When the 

Commonwealth grants a marriage, it does not simply give the 

couple a piece of paper and a title. Rather, it provides a 

substantial subsidy to the married couple -- economic benefits 

that, the plaintiffs repeatedly assert, are being denied them. 

For example, married couples are permitted to file state income 

taxes jointly, lowering their tax rates. See Va. Code Ann. 

§ 58.1-324. Although indirect, such benefits are clearly 

subsidies that come at a cost to the Commonwealth. Virginia is 

willing to provide these subsidies because they encourage 

opposite-sex couples to marry, which tends to provide children 

from unplanned pregnancies with a more stable environment. 

Under Johnson, the Commonwealth is not obligated to similarly 

subsidize same-sex marriages, since doing so could not possibly 

further its interest. This is no different from the subsidies 

provided in other cases where the Supreme Court has upheld linedrawing, such as Medicare benefits, Matthews v. Diaz, 426 U.S. 

67, 83-84 (1976), or veterans’ educational benefits, Johnson, 

415 U.S. at 383.
89

As an additional argument, Virginia maintains that marriage 

is a “[c]omplex social institution[]” with a “set of norms, 

rules, patterns, and expectations that powerfully (albeit often 

unconsciously) affect people’s choices, actions, and 

perspectives.” It asserts that discarding the traditional 

definition of marriage will have far-reaching consequences that 

cannot easily be predicted, including “sever[ing] the inherent 

link between procreation . . . and marriage . . . [and] in 

turn . . . powerfully convey[ing] that marriage exists to 

advance adult desires rather than [to] serv[e] children’s 

needs.”

The plaintiffs agree that changing the definition of

marriage may have unforeseen social effects, but they argue that 

such predictions should not be enough to save Virginia’s 

marriage laws because similar justifications were rejected in 

Loving. The Loving Court, however, was not applying rationalbasis review. See Loving, 388 U.S. at 11-12. We are on a 

different footing here. Under rational-basis review, 

legislative choices “may be based on rational speculation 

unsupported by evidence or empirical data.” Beach Commc’ns, 508 

U.S. at 315. “Sound policymaking often requires legislators to 

forecast future events and to anticipate the likely impact of 

these events based on deductions and inferences for which 

complete empirical support may be unavailable.” Turner Broad. 
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Sys., Inc. v. FCC, 512 U.S. 622, 665 (1994) (plurality opinion). 

And the legislature “is far better equipped than the judiciary” 

to make these evaluations and ultimately decide on a course of 

action based on its predictions. Id. at 665-66. In enacting 

its marriage laws, Virginia predicted that changing the 

definition of marriage would have a negative effect on children 

and on the family structure. Although other States do not share 

those concerns, such evaluations were nonetheless squarely 

within the province of the Commonwealth’s legislature and its 

citizens, who voted to amend Virginia’s Constitution in 2006.

Virginia has undoubtedly articulated sufficient rational 

bases for its marriage laws, and I would find that those bases 

constitutionally justify the laws. Those laws are grounded on

the biological connection of men and women; the potential for 

their having children; the family order needed in raising 

children; and, on a larger scale, the political order resulting 

from stable family units. Moreover, I would add that the 

traditional marriage relationship encourages a family structure 

that is intergenerational, giving children not only a structure 

in which to be raised but also an identity and a strong 

relational context. The marriage of a man and a woman thus 

rationally promotes a correlation between biological order and 

political order. Because Virginia’s marriage laws are 
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rationally related to its legitimate purposes, they withstand 

rational-basis scrutiny under the Due Process Clause.

IV

The majority does not substantively address the plaintiffs’ 

second argument -- that Virginia’s marriage laws invidiously 

discriminate on the basis of sexual orientation, in violation of 

the Equal Protection Clause -- since it finds that the laws 

infringe on the plaintiffs’ fundamental right to marriage. But 

because I find no fundamental right is infringed by the laws, I 

also address discrimination under the Equal Protection Clause.

The Equal Protection Clause, which forbids any State from 

“deny[ing] to any person within its jurisdiction the equal 

protection of the laws,” U.S. Const. amend. XIV, § 1, prohibits 

invidious discrimination among classes of persons. Some 

classifications -- such as those based on race, alienage, or 

national origin -- are “so seldom relevant to the achievement of 

any legitimate state interest that laws grounded in such 

considerations are deemed to reflect prejudice and antipathy --

a view that those in the burdened class are not as worthy or 

deserving as others.” City of Cleburne v. Cleburne Living Ctr., 

473 U.S. 432, 440 (1985). Any laws based on such “suspect” 

classifications are subject to strict scrutiny. See id. In a 

similar vein, classifications based on gender are “quasi-
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suspect” and call for “intermediate scrutiny” because they 

“frequently bear[] no relation to ability to perform or 

contribute to society” and thus “generally provide[] no sensible 

ground for differential treatment.” Id. at 440-41 (quoting 

Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality 

opinion)); see also Craig v. Boren, 429 U.S. 190, 197 (1976). 

Laws subject to intermediate scrutiny must be substantially 

related to an important government objective. See United States 

v. Virginia, 518 U.S. 515, 533 (1996).

But when a regulation adversely affects members of a class 

that is not suspect or quasi-suspect, the regulation is 

“presumed to be valid and will be sustained if the 

classification drawn by the statute is rationally related to a 

legitimate state interest.” City of Cleburne, 473 U.S. at 440 

(emphasis added). Moreover, the Supreme Court has made it clear 

that

where individuals in the group affected by a law have 

distinguishing characteristics relevant to interests 

the State has the authority to implement, the courts 

have been very reluctant, as they should be in our 

federal system and with our respect for the separation 

of powers, to closely scrutinize legislative choices 

as to whether, how, and to what extent those interests 

should be pursued. In such cases, the Equal 

Protection Clause requires only a rational means to 

serve a legitimate end.

Id. at 441-42 (emphasis added). This is based on the 

understanding that “equal protection of the laws must coexist 
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with the practical necessity that most legislation classifies 

for one purpose or another, with resulting disadvantage to 

various groups or persons.” Romer, 517 U.S. at 631.

The plaintiffs contend that Virginia’s marriage laws should 

be subjected to some level of heightened scrutiny because they 

discriminate on the basis of sexual orientation. Yet they 

concede that neither the Supreme Court nor the Fourth Circuit 

has ever applied heightened scrutiny to a classification based 

on sexual orientation. They urge this court to do so for the 

first time. Governing precedent, however, counsels otherwise.

In Romer v. Evans, the Supreme Court did not employ any 

heightened level of scrutiny in evaluating a Colorado 

constitutional amendment that prohibited state and local 

governments from enacting legislation that would allow persons 

to claim “any minority status, quota preferences, protected 

status, or . . . discrimination” based on sexual orientation. 

Romer, 517 U.S. at 624. In holding the amendment 

unconstitutional under the Equal Protection Clause, the Court 

applied rational-basis review. See id. at 631-33.

And the Supreme Court made no change as to the appropriate 

level of scrutiny in its more recent decision in Windsor, which 

held Section 3 of the Defense of Marriage Act unconstitutional. 

The Court was presented an opportunity to alter the Romer

standard but did not do so. Although it did not state the level 
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of scrutiny being applied, it did explicitly rely on rationalbasis cases like Romer and Department of Agriculture v. Moreno, 

413 U.S. 528 (1973). See Windsor, 133 S. Ct. at 2693. In his 

dissenting opinion in Windsor, Justice Scalia thus noted, “As 

nearly as I can tell, the Court agrees [that rational-basis 

review applies]; its opinion does not apply strict scrutiny, and 

its central propositions are taken from rational-basis cases 

like Moreno.” Id. at 2706 (Scalia, J., dissenting).

Finally, we have concluded that rational-basis review 

applies to classifications based on sexual orientation. See

Veney v. Wyche, 293 F.3d 726, 731-32 (4th Cir. 2002). In Veney, 

a prisoner filed a § 1983 action alleging that he had been 

discriminated against on the basis of sexual preference and 

gender. Id. at 729-30. We noted that the plaintiff “[did] not 

allege that he [was] a member of a suspect class. Rather, he 

claim[ed] that he ha[d] been discriminated against on the basis 

of sexual preference and gender. Outside the prison context, 

the former is subject to rational basis review, see Romer v. 

Evans, 517 U.S. 620, 631-32 (1996).” Id. at 731-32 (footnote 

omitted).

The vast majority of other courts of appeals have reached 

the same conclusion. See Cook v. Gates, 528 F.3d 42, 61 (1st 

Cir. 2008) (“Romer nowhere suggested that the Court recognized a 

new suspect class. Absent additional guidance from the Supreme 
95

Court, we join our sister circuits in declining to read Romer as 

recognizing homosexuals as a suspect class for equal protection 

purposes”); Price-Cornelison v. Brooks, 524 F.3d 1103, 1113-14 & 

n.9 (10th Cir. 2008) (“A government official 

can . . . distinguish between its citizens on the basis of 

sexual orientation, if that classification bears a rational 

relation to some legitimate end” (internal quotation marks 

omitted)); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 

865-66 (8th Cir. 2006) (discussing Romer and reaching the 

conclusion that “[t]hough the most relevant precedents are 

murky, we conclude for a number of reasons that [Nebraska’s 

same-sex marriage ban] should receive rational-basis review 

under the Equal Protection Clause, rather than a heightened 

level of judicial scrutiny”); Johnson v. Johnson, 385 F.3d 503, 

532 (5th Cir. 2004) (“[A] state violates the Equal Protection 

Clause if it disadvantages homosexuals for reasons lacking any 

rational relationship to legitimate governmental aims”); Lofton 

v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804, 818 

(11th Cir. 2004) (“[A]ll of our sister circuits that have 

considered the question have declined to treat homosexuals as a 

suspect class. Because the present case involves neither a 

fundamental right nor a suspect class, we review 

the . . . statute under the rational-basis standard” (footnote 

omitted)); Equal. Found. of Greater Cincinnati, Inc. v. City of 
96

Cincinnati, 128 F.3d 289, 294, 300 (6th Cir. 1997) (applying 

rational-basis review in upholding a city charter amendment 

restricting homosexual rights and stating that in Romer, the 

Court “did not assess Colorado Amendment 2 under ‘strict 

scrutiny’ or ‘intermediate scrutiny’ standards, but instead 

ultimately applied ‘rational relationship’ strictures to that 

enactment and resolved that the Colorado state constitutional 

provision did not invade any fundamental right and did not 

target any suspect class or quasi-suspect class”); Ben-Shalom v. 

Marsh, 881 F.2d 454, 464 (7th Cir. 1989) (applying rationalbasis review prior to the announcement of Romer); Woodward v. 

United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989) (“The 

Supreme Court has identified only three suspect classes: racial 

status, national ancestry and ethnic original, and alienage. 

Two other classifications have been identified by the Court as 

quasi-suspect: gender and illegitimacy. [Plaintiff] would have 

this court add homosexuality to that list. This we decline to 

do” (citations and footnote omitted)). But see SmithKline 

Beecham Corp. v. Abbott Labs., 740 F.3d 471, 481 (9th Cir. 2014) 

(applying heightened scrutiny to a Batson challenge that was 

based on sexual orientation); Windsor v. United States, 699 F.3d 

169, 180-85 (2d Cir. 2012) (finding intermediate scrutiny 

appropriate in assessing the constitutionality of Section 3 of 

the Defense of Marriage Act).
97

Thus, following Supreme Court and Fourth Circuit precedent, 

I would hold that Virginia’s marriage laws are subject to 

rational-basis review. Applying that standard, I conclude that 

there is a rational basis for the laws, as explained in Part 

III, above. At bottom, I agree with Justice Alito’s reasoning 

that “[i]n asking the court to determine that [Virginia’s 

marriage laws are] subject to and violate[] heightened scrutiny, 

[the plaintiffs] thus ask us to rule that the presence of two 

members of the opposite sex is as rationally related to marriage 

as white skin is to voting or a Y-chromosome is to the ability 

to administer an estate. That is a striking request and one 

that unelected judges should pause before granting.” Windsor, 

133 S. Ct. at 2717-18 (Alito, J., dissenting).

V

Whether to recognize same-sex marriage is an ongoing and 

highly engaged political debate taking place across the Nation, 

and the States are divided on the issue. The majority of courts 

have struck down statutes that deny recognition of same-sex 

marriage, doing so almost exclusively on the idea that same-sex 

marriage is encompassed by the fundamental right to marry that 

is protected by the Due Process Clause. While I express no 

viewpoint on the merits of the policy debate, I do strongly 

disagree with the assertion that same-sex marriage is subject to 
98

the same constitutional protections as the traditional right to 

marry.

Because there is no fundamental right to same-sex marriage 

and there are rational reasons for not recognizing it, just as 

there are rational reasons for recognizing it, I conclude that 

we, in the Third Branch, must allow the States to enact 

legislation on the subject in accordance with their political 

processes. 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.

I would reverse the district court’s judgment and defer to 

Virginia’s political choice in defining marriage as only between 

one man and one woman.