Federalism & Virtue and Morality

Bostic v. Schaefer (2013)

  • May 18 2018

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Whether Virginia’s laws prohibiting same-sex marriage and refusing to recognize out-of-state homosexual marriages violates the Due Process and Equal Protection Clauses.


Two men, Timothy Bostic and Tony London, lived together in Norfolk, Virginia, for more than 20 years. They wished to marry so that they could enjoy the rights and benefits of Virginia’s marriage laws. On July 1, 2013, Bostic and London applied for a marriage license from the Circuit Court for the City of Norfolk. They met the requirements for marriage except for the fact that they were both men. Similarly, two women, Carol Schall and Mary Townley, lived in Chesterfield, Virginia, with their fifteen-year-old daughter. In 2008, the couple were legally married in California but then moved to Virginia.

Virginia code outlawed same-sex marriages, and the state refused to recognize out-of-state, same-sex marriages. Several homosexuals filed suit alleging that this law violated the Equal Protection Clause of the Fourteenth Amendment.

The Court Below

The United States District Court for the Eastern District of Virginia was the first to hear the case on February 14, 2014. The court determined that Virginia’s ban on homosexual marriage was a violation of the Due Process and Equal Protection Clauses. See opinion below:

Bostic v. Rainey, 970 F.Supp.2d 456 E.D. Va., 2014

The state appealed to the Fourth Circuit, which upheld the district court’s decision, holding that Virginia’s laws were unconstitutional. See opinion below:

Bostic v. Schaefer, 760 F.3d 352 4th Cir., 2014

The state then appealed to the Supreme Court, which denied certiorari.

Question examined by the Fourth Circuit

“[T]he question before us is whether the ‘liberty’ specially protected by the Due Process Clause [of the 14th Amendment] includes a right to same-sex marriage.”

Center for Constitutional Jurisprudence filed a joint amicus curiae brief with the Virginia Catholic Conference in support of Schaefer 


To map this argument broadly, the Supreme Court already dismissed a gay-marriage case in Baker v. Nelson 1972, in which the Court held that there was no federal question for them to consider. Marriage laws are left to the states. Next, the district court incorrectly held that Virginia’s marriage laws infringed on a fundamental right and were therefore subject to the standard of strict scrutiny, whereby laws must overcome great hurdles to be considered constitutional. Third, based on its definition of marriage, Virginia does not deny gay couples equal protection of the law. Finally, the basic principles of federalism counsel restraint.

The Supreme Court’s holding in Baker controls this case. There the Court addressed identical Due Process and Equal Protection constitutional challenges to the one man/woman definition of marriage by a same-sex couple. The Court dismissed it for lack of federal question. Claims of “doctrinal developments” since Baker suggesting it is no longer binding are erroneous, since only the Supreme Court can directly overturn its own precedent—which it has not done—and indeed in United States v. Windsor 2013 the Court reaffirmed the states’ authority to define marriage for state purposes.

Virginia’s gay marriage laws do not infringe on a fundamental right and therefore are not subject to the standard of strict scrutiny. “Fundamental rights,” as the well-known formula from Glucksberg v. Washington 1997 requires, must be “objectively, deeply rooted in this Nation’s history and tradition … and implicit in the concept of ordered liberty.” As of 2007, almost every state and federal court to consider same-sex marriage laws had found no violation of fundamental rights. Lower federal courts have found gay marriage to be a fundamental right only in the past few months, and even then, the lower courts relied on cases considering heterosexual relationships, not gay marriage. Gender complementarity is not irrelevant to marriage as some lower courts have asserted. Instead, it goes to the essence of marriage and is necessary to one of marriage’s principal functions—procreation and the rearing of families. Virginia’s one-man/one-woman marriage laws therefore reaffirm a historical understanding based in biological reality.

Strict scrutiny is the incorrect standard to review Virginia’s laws. The Court explicitly held in Thomasson v. Perry 1996 that statutory classifications involving homosexuality are reviewed according to the rational basis test. Furthermore, several other circuits have recognized that the Supreme Court currently applies only rational basis review to classifications based on sexual orientation. Virginia’s marriage laws must be upheld unless the challengers can demonstrate that they “[do] not rationally advance a reasonable and identifiable government objective.” That state interest in these laws is keeping children in biological families with their biological parents to foster child-centric marriages. Virginia supports its citizens with same-sex attractions, but there is no state requirement to extend the institution of marriage to relationships that, by their nature, fail to further the Commonwealth’s legitimate interests.

Finally, Equal Protection claims made by the plaintiffs should be denied because same-sex relationships are not similarly-situated to opposite-sex marriages in ways that carry relevance to Virginia’s state laws. The people of Virginia enacted their marriage laws to protect the traditional view of marriage as an institution grounded on the unique biological complementarity of the sexes in unions that are capable of producing children. It does not stand to reason that same-sex and opposite-sex couples are similarly situated with respect to that fundamental purpose.

The Windsor decision was grounded in the principle that states are the primary determiners of marriage policy. The Supreme Court appears to have adopted a federalism approach to defining marriage for state purposes. This decision led the Court to hold that New York should be allowed to experiment with the definition of marriage, free from federal intervention. On the flipside, the inescapable conclusion is that other states like Virginia must be allowed not to experiment with such a core social institution if they do not wish to.

Final Outcome

The Fourth Circuit ruled in a 2-1 decision that Virginia could not prevent homosexual couples from marrying on the grounds that it “impermissibly infringe[s] on its citizens’ fundamental right to marry.” The case was appealed to the Supreme Court, but the Court declined to hear the case.