A three-judge panel of the U.S. Court of Appeals for the 4th Circuit is hearing arguments about whether Virginia’s strict ban on same-sex marriage and civil unions violates the constitutional rights of the commonwealth’s estimated 14,000 gay couples. This is just the second appeals court to consider whether state bans on same-sex marriage are unconstitutional, and the review follows twin decisions by the Supreme Court last June that provided historic victories for gay rights groups in the court’s first consideration of same-sex marriage.
Allowing for a short amount of lag time due to courtroom logistics, check here for live updates on the hour-long arguments.
The hour-long arguments will be before a randomly selected three-judge panel that was not announced until Tuesday morning. The three are Paul V. Niemeyer, nominated to the court in 1990 by President George H. W. Bush; Roger L. Gregory, a recess appointment by President Bill Clinton in 2000 who was subsequently nominated by President George W. Bush; and Henry F. Floyd, nominated as a district judge by George W. Bush in 2003 and named to the appeals court by President Obama in 2011.
The 4th Circuit, once considered one of the nation’s most conservative courts, now has a majority of judges nominated by Democratic presidents. Its jurisdiction covers Maryland, Virginia, West Virginia, North Carolina and South Carolina.
A large crowd gathered on the sidewalk in front of the courthouse before arguments began. “Virginia voters betrayed by Herring,” read one sign. “Marry who you love,” read another.
Benda Keener, a retired accountant from Chesterfield, was there with a group from the conservative Family Foundation protesting against gay marriage.
“I am a Christian that believes marriage is between a man and woman as spoken of in the Bible,” she said. “I’m not here to condemn anyone else, just to make the statement that marriage is between a man and a woman.”
Rick Wilkins of Virginia Beach held a homemade sign written on Day-Glo green poster board that read: “Biology is not bigotry.”
“I am here representing my church but most of all representing God, knowing he ordained one woman and one man to be married to each other,” he said.
Carl Johansen, secretary of the pro-gay marriage group Equality Virginia, held a sign reading, “Marry who you love.”
“Virginia is ready for marriage equality,” he said.
The gavel sounds promptly and we’re ready to roll. Attorney General Mark Herring is seated in the front row.
Presiding Judge Paul V. Niemeyer comments on the packed house and hoopla outside on Main Street: “My, we have full courtroom, there must be something of interest today.”
David B. Oakley introduces himself as the attorney representing Norfolk Clerk George Schaefer. Explaining that same sex marriage represents a “dramatic departure from existing law,” Oakley sites case law which he says shows a ban on same-sex marriage doesn’t vote the Fourteenth Amendment right to due process and that states have the exclusive right to define marriage for themselves.
Niemeyer counters that judges may leave the decision up to states, but – “and it’s a big but” – states still cannot trample on the rights guaranteed by the Fourteenth Amendment.
Post reporter Bob Barnes profiled the judge who struck down Virginia’s same sex ban in February:
Arenda L. Wright Allen made history in 2011 by becoming the first black woman nominated to serve as a federal district judge in Virginia. On Thursday, Feb. 13, she cemented her legacy with a sweeping decision striking down Virginia’s ban on same-sex marriage in a moment she said makes “our freedom more perfect.”
The 53-year-old jurist, nominated by President Obama, joins an unbroken string of federal judges to side with same-sex marriage proponents since the Supreme Court delivered gay rights victories on the subject in June.
But her forceful and sometimes grandiose 41-page ruling — issued on the eve of Valentine’s Day and including an unapologetic defense of a federal judge’s duty to strike down a democratic decision that may intrude on constitutional rights — seemed to draw special attention.
Attorney David Oakley notes that 1.3 million voters chose to reaffirm marriage as between one man and one woman. The same-sex couples fighting for the right to marry argue that not recognizing that right is “demeaning,” he says. But – citing an argument made by U.S. Supreme Court Justice Anthony Kennedy — Oakely says deciding that the voters of the Commonwealth of Virginia are not capable of making the decision is actually “demeaning.”
Niemeyer interrupts him to correct him on Kennedy: “Well, he gives a little and he takes a little bit away.”
Judge Roger Gregory gets into the action with a question, asking, isn’t it the essence of the right that people get to decide who they marry?
“How can Virginia define it to appoint that it is unrecognizable?” Gregory wants to know.
Oakley introduces the idea that protecting children is a benefit of so-called traditional marriage.
Gregory seizes on the point, saying: “It sounds like a totalitarian system, allow you to get married to have children and having children is in the best interest of the state.” He continues, asking if the state should mandate that couples have children or whether 90-year-old couples should be forced to have children.
“Until a few years ago no one could assume same sex marriage to [be] a possibility,” attorney Oakley says, explaining that 17 states recognize the marriages and the majority, 33, do not.
Gregory says the same could be said of interracial marriage in the nation’s history.
Oakley prompts some quiet laughter in the overflow room with the notion that Pocahontas married John Smith and “their marriage was not considered unconstitutional.”
Next up: David Austin Robert Nimocks, of the Alliance for Defending Freedom, representing Prince William Clerk Michele McQuigg.
Nimocks argues that the fundamental right to marry is “inextricably linked” to procreating, citing past case law that says inmates are expected to be released to consummate their marriages that they entered into while behind bars.
Mary Townley and her partner, Carol Schall, who live in suburban Richmond, are one of two couples at the center of the case being argued today. (The women were married in California in 2008.) Post reporter Richard Leiby profiled them recently.
David Austin Robert Nimocks, of the Alliance for Defending Freedom, representing Prince William Clerk Michele McQuigg, says only the U.S. Supreme Court can decide such matters, giving Gregory an opening for a reality check, saying they’re in Richmond, “a way station up 95″ to the high court.
Moving on, Presiding Judge Paul V. Niemeyer says the state could argue that opposite sex marriage is vital to the stability of the state. After a few minutes, Nimocks picks up on the point saying “men and women bring diversity and the essence of both sexes to children.”
Floyd wants to know if Virginia could violate the constitution by not recognizing same-sex marriages from other states, and specific to this case, California. Such a policy would invalidate Virginia’s public policy, Nimocks says.
One of the presiding judges, Roger L. Gregory, again adopting an incredulous tone, asks what of the children of these out-of-state marriages.
“Why do you want to deny (them) these warm and wholesome things about marriage?” he asks. He continues, asking if the children of same-sex couples feel the love or embrace of their parents differently than children of opposite sex couples do.
“If you’re concerned about the child, why does Virginia rip that from the child?” Gregory asks.
From Post reporter Bob Barnes:
The legal forces challenging Virginia’s ban on same-sex marriage have been brought together in something like a shotgun wedding, uniting lawyers who previously clashed over the best legal strategy to pursue a common goal.
One side (of the same side) are celebrity lawyers Theodore Olson and David Boies, who have urged that bans on same-sex marriage should be met with a swing-for-the fences challenge to convince federal courts that the restrictions are unconstitutional.
Their uneasy allies in Virginia are the American Civil Liberties Union and Lambda Legal, groups that in the past have advocated a more measured and incremental state-by-state strategy.