Virginia Same Sex Marriage Decision — Bostic v. Schaefer
Timothy B. Bostic, Tony C. London, Carol Schall, and Mary Townley

v.

George E. Schaefer, III, in his official capacity as the Clerk of Court for Norfolk Circuit Court

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 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 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.”

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.
• 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 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 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.”

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). 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
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 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 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 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 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. 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,
35
No. 13-4178, 2014 WL 2868044, at *7-10 (10th Cir. June 25, 2014); Love v. Beshear, No. 3:13-cv-750-H, 2014 WL 2957671, *2-3 (W.D. Ky. July 1, 2014); Baskin v. Bogan, Nos. 1:14-cv-00355-RLY-TAB, 1:14-cv-00404-RLY-TAB, 2014 WL 2884868, at *4-6 (S.D. Ind. June 25, 2014); Wolf v. Walker, No. 14-cv-64-bbc, 2014 WL 2558444, at *4-6 (W.D. Wis. June 6, 2014); Whitewood v. Wolf, No. 1:13-cv-1861, 2014 WL 2058105, at *5-6 (M.D. Pa. May 20, 2014); Geiger v. Kitzhaber, Nos. 6:13-cv-01834-MC, 6:13-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 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 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 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 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. 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
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 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 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 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 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 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] 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.

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 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 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 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 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 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 associated with unintended children.” The Proponents allege that children born to unwed parents face a “significant risk” of being raised in unstable families, which is harmful to their development. Virginia, “of course, has a duty of the highest order to protect the interests of minor children, particularly those of tender years.” Palmore v. Sidoti, 466 U.S. 429, 433 (1984). However, the Virginia Marriage Laws are not appropriately tailored to further this interest.

If Virginia sought to ensure responsible procreation via the Virginia Marriage Laws, the laws are woefully underinclusive. Same-sex couples are not the only category of couples who cannot reproduce accidentally. For example, opposite-sex couples cannot procreate unintentionally if they include a post-menopausal woman or an individual with a medical condition that prevents unassisted conception.
The Proponents attempt to downplay the similarity between same-sex couples and infertile opposite-sex couples in three ways. First, they point out that sterile individuals could remedy their fertility through future medical advances. This potentiality, however, does not explain why Virginia should treat same-sex and infertile opposite-sex couples differently during the course of the latter group’s infertility. Second, the Proponents posit that, even if one member of a man-woman couple is sterile, the other member may not be. They suggest
55
that, without marriage’s monogamy mandate, this fertile individual is more likely to have an unintended child with a third party. They contend that, due to this possibility, even opposite-sex couples who cannot procreate need marriage to channel their procreative activity in a way that same-sex couples do not. The Proponents’ argument assumes that individuals in same-sex relationships never have opposite-sex sexual partners, which is simply not the case. Third, the Proponents imply that, by marrying, infertile opposite-sex couples set a positive example for couples who can have unintended children, thereby encouraging them to marry. We see no reason why committed same-sex couples cannot serve as similar role models. We therefore reject the Proponents’ attempts to differentiate same-sex couples from other couples who cannot procreate accidentally. Because same-sex couples and infertile opposite-sex couples are similarly situated, the Equal Protection Clause counsels against treating these groups differently. See City of Cleburne, 473 U.S. at 439 (explaining that the Equal Protection Clause “is essentially a direction that all persons similarly situated should be treated alike”).

Due to the Virginia Marriage Laws’ underinclusivity, this case resembles City of Cleburne v. Cleburne Living Center, Inc. In City of Cleburne, the Supreme Court struck down a city law that required group homes for the intellectually disabled to 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 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 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 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 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.

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
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]

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.

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