                                 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;
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

                                 2
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

                                 3
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.




                                  4
                                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

                                     5
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;

                                 6
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;

                                 7
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.




                                  8
                                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

                                     9
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

                                 10
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;

                                 11
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.




                                  12
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

                               13
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

                               14
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,

                                  15
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

                               16
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

                                 17
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,

                                 18
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.




                                19
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 same-

sex   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).



                                         20
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

                                        21
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 same-

sex     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   otherwise-

lawful      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.”

                                                 22
       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.



                                            23
  •   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



                                         24
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



                                         25
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.”

                                          26
                                             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 non-

moving 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).

                                             27
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




                                           28
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.



                                     29
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




                                              30
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

                                          31
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).



                                         32
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.

                                           33
332, 344 (1975).         The Court dismissed the appeal in a one-

sentence 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,

                                            34
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-cv-

02256-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

                                       35
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.



                                             36
heterosexual persons do.”             Id. at 574.             These considerations led

the Court to strike down a Texas statute that criminalized same-

sex 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 quasi-

suspect, 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

                                          37
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

                                         38
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.



                                         39
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

                                              40
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 same-

sex marriage for the same reason.

     We do not dispute that states have refused to permit same-

sex 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

                                        41
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

                                              42
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

                                               43
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

                                              44
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 Proponents 7 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.



                                                  45
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.


                                             46
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:                           opposite-

sex 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.



                                               47
       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

                                              48
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 Rights 9 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).


                                        49
          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

                                                 50
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

                                           51
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




                                              52
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

                                          53
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

                                            54
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

                                              55
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



                                               56
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

                                                57
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        line-

drawing 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

                                                58
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     “gender-

differentiated           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

                                                 59
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.



                                                  60
       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



                                              61
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.


                                             62
     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




                                       63
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
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-



                                            65
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

                                           66
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

                                               67
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


                                          68
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 same-

sex   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

                                          69
(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

                                     70
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

                                         71
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

                                               72
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.



                                          73
                                                  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 same-

sex    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

                                                  74
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).

                                       75
     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.


                                         76
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”).

                                                77
     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, man-

woman 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

                                        78
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.

                                           79
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

                                            80
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

                                              81
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

                                              82
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”

                                     83
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,

                                         84
     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

                                   85
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

                                               86
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 opposite-

sex    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 “line-

drawing” only makes sense if the resources at issue are scarce,

                                                 87
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 line-

drawing, such as Medicare benefits, Matthews v. Diaz, 426 U.S.

67, 83-84 (1976), or veterans’ educational benefits, Johnson,

415 U.S. at 383.



                                              88
         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 rational-

basis 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.

                                             89
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



                                            90
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-


                                        91
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


                                            92
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 rational-

basis 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

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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

                                                 95
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 rational-

basis 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).

                                              96
       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


                                          97
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.




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