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.
That’s it. Judge Niemeyer thanks the lawyers for their “elegant and eloquent” arguments and the show’s over, except for outside, where protesters remain on the sidewalk with their signs.
Virginia Solicitor General Stuart A. Raphael wraps up his argument by quoting President John F. Kennedy on civil rights.
“Sometimes you look at what you’ve done and all you can do is ask, ‘What took you so long to do it?’ ” he says.
Then David Nimocks, of the Alliance for Defending Freedom, has a few more minutes for rebuttal, and a chance to tangle once again with Judge Gregory.
Nimocks says that for over 400 years in Virginia, marriage has been between a man and a woman.
“Tradition doesn’t get you there,” Judge Gregory retorts, noting that the state did not recognize interracial marriage until Loving came along.
Nimocks replies: “This is a new thing upon us.”
Solicitor General Stuart A. Raphael argues that the question before the court is not whether there is a Constitutional right to same-sex marriage, but whether the right to marriage can be denied to same-sex couples.
He calls it a “no-brainer” that the ban should not discriminate against people based on their sexual orientation. He also says it is a form of gender discrimination.
Judge Niemeyer is skeptical.
“You need a man and a woman to have a child,” he says. “I’m not aware of any person in the world who is not a product of a man and a woman. …. At least as of now. Scientifically, we don’t know where we’re headed.”
James D. Esseks of the American Civil Liberties Union gets his chance. He argues that the purpose of Virginia’s ban was the same as the federal Defense of Marriage Act, which had blocked federal recognition of same-sex marriages. The Supreme Court struck that law down last year.
Judge Niemeyer is not buying the idea that the Supreme Court decided, in that case, that the problem with that law centered on the unequal treatment of gay and straight marriages. He says the justices were showing deference to the right of states to regulate marriage, shoring up Virginia’s right to ban gay unions not calling it into question.
The problem with DOMA, he says, was the “federal government getting involved in a relationship that is the domain of the states.”
Continuing with his argument, attorney Theodore Olson invokes Loving v. Virginia, the U.S. Supreme Court case that threw out Virginia’s ban on interracial marriage. He says that ban, like the current one on gay marriage, violated Virginians’ due process and equal protection rights.
Again, Judge Niemeyer is quick to jump in, noting that an interracial union “keeps humankind going,” meaning it can produce children naturally.
Olson says to treat gay unions differently than heterosexual ones is to deny them liberty.
“How far do you want to carry that?” Judge Niemeyer says. “A man could marry six wives. A man could marry his daughter.”
Olson says there is an overwhelming societal interest in prohibiting polygamy and incest, but not gay marriages.
“You’re saying these individuals, my clients, have a second-class relationship,” he says.
Time to hear from the other side.
Attorney Theodore Olson steps up to argue against the gay marriage ban. He begins by noting that Virginia’s prohibition goes beyond prohibiting marriage between same-sex couples, also banning domestic partnerships or any other arrangements that approximate marriage.
“Marriage is a fundamental right,” he says.
He is quickly interrupted by Judge Niemeyer, who in the second half of the day’s proceedings is playing the flipside to what Judge Gregory was in the first half. Where Judge Gregory aggressively and skeptically grilled lawyers representing opponents of gay marriage, Judge Niemeyer does the same to the supporting side. Judge Floyd is mostly keeping mum, keeping observers guessing about what the outcome might be.
Niemeyer agrees that marriage is an important, even “sacred” right, but he questions whether it should be extended to non-heterosexual unions, which he referred to as “relationship B.”
“Now we have a new relationship that the state can well show respect to,” Judge Niemeyer said. “But it can’t create the same family unit that has been recognized through history.”
To call homosexual unions “marriage” is to “play with the language,” Judge Niemeyer says.
Proponents of same-sex marriage have had a string of successes around the country since the Supreme Court struck a key part of the Defense of Marriage Act in U.S. v. Windsor. Currently, 18 states, plus the District of Columbia, allow same-sex marriage, and 32 states have limitations on it.
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.
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.
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.