Why This Judge Dissented - and Said There Is No Right to Same-Sex Marriage

Phtoo Credit: Scott P. Yates / Newscom

Today, in a 2-1 split decision, the 4th circuit ruled that Virginia’s marriage amendment defining marriage as the union of a man and a woman violates the 14th Amendment of the U.S. Constitution. The majority declared that Virginia’s law “impermissibly infringe[s] on its citizens’ fundamental right to marry.”

Judge Paul Niemeyer issued a strong dissent arguing that the court got it wrong, for “the majority has failed to conduct the necessary constitutional analysis.” “The fundamental right to marriage does not include a right to same-sex marriage,” Niemeyer concluded.

Today’s ruling will almost certainly be appealed. After all, the Supreme Court decisions, such as Loving v. Virginia, that established a fundamental right to marry understood marriage as the union of a man and a woman.

In issuing today’s ruling, the court implicitly supplied its own, new answer to the central question in this debate: what is marriage? The only way the 4th Circuit could reach its decision was to adopt a view of marriage that sees it as an essentially genderless institution and then declare that the Constitution requires that the States (re)define marriage in such a way.

But our Constitution is silent on what marriage is. And there are good arguments on both sides of this debate. Judges should not insert their own policy preferences about marriage and declare them to be required by the Constitution.