RICHMOND, Va. — The 4th Circuit Court of Appeals looks likely to declare Virginia's ban on marriages for same-sex couples unconstitutional, following the path set by trial judges all over the country.
Two of the court's three judges appeared ready to strike down the ban Tuesday at oral arguments in Richmond — the third federal appellate hearing on the question currently winding its way through federal and state courts throughout the nation.
Judge Paul Niemeyer was the only judge hearing the arguments who pressed heavily on the side of the state's ban, saying that same-sex couples are creating a "brand-new relationship" and that "it takes a male and female to have a child, to have a family."
The "core of a family" is the mother–father relationship, Niemeyer told Ted Olson, who was arguing for same-sex couples fighting the 2006 marriage ban. Describing that relationship as "A" and same-sex couples' relationships as "B," Niemeyer said that "the state can redefine it and call it marriage," but that wouldn't change the fact that "these are two different relationships."
Although arguments about defining fundamental rights and the level of scrutiny to be used in reviewing the 2006 amendment — the questions central to the briefs in the case — were discussed during the hour, Niemeyer's focus at times seemed out of place, echoing as it did a Kentucky Court of Appeals opinion from 1973 that dismissed a same-sex couple's attempt to get a marriage license because "what they propose is not a marriage."
The other judges mostly did not engage directly with Niemeyer's argument, appearing prepared to continue the path laid out by the Supreme Court in its trilogy of "gay rights" cases in providing additional protections to gay, lesbian, and bisexual people and, in striking down the Defense of Marriage Act last year, same-sex couples' relationships.
Although Judge Henry Floyd didn't ask much during the arguments, he suggested he understood a path was being laid out by the court — specifically in last year's opinion in United States v. Windsor striking down the Defense of Marriage Act's federal ban on recognizing same-sex couples' marriages.
Floyd led off the argument by asking lawyer David Oakley the first question of the day. Raising the 1972 Supreme Court decision dismissing a marriage case brought by a same-sex couple in Minnesota because, the court ruled, there was no "substantial federal question" raised by the case, Floyd asked whether it was left "intact" after last year's opinion striking down DOMA in United States v. Windsor.
And, though Oakley said it was, Floyd later returned to the question, noting that the case had been a "summary dismissal."
Judge Roger Gregory later picked up that point with Austin Nimocks, the Alliance Defending Freedom lawyer who was representing clerk of court Michele McQuigg. Of the 1972 case, Gregory asked Nimocks incredulously, "You think this still isn't a substantial federal question?"
Gregory pounded Nimocks with questions throughout his argument. Detailing the line of Supreme Court cases addressing privacy rights, Gregory said of Virginia's ban on same-sex couples' marriages, "You can't make it so that this 'fundamental right' of choice is unrecognizable."
Of the argument that the ban is about supporting the state's aim of providing children with their mother and father, Nimocks said, "I don't think Virginia denies anything to same-sex couples that they don't deny a single mother" or a grandparent raising a grandchild. Gregory shot back: "If you're concerned about the children, why does Virginia want to rip that away from a child" whose parents are of the same sex?
Nimocks replied that same-sex couples don't give children a mother and a father and that that mother-father possibility is the state's reason for marriage — the point extended by Niemeyer in his questions in the case.
That, and an exchange about whether adopted children are different than biological children, led Gregory finally to say, "It's really disingenuous, your interest in children."
Floyd, for his part, also pressed back against the arguments by the clerks that last year's DOMA ruling was, primarily, a ruling about federalism, saying the court itself gave "short shrift" to that argument and that the decision by Justice Anthony Kennedy was focused on due process and equal protection rights.
Olson, the ACLU's James Esseks and Virginia's solicitor general, Stuart Raphael, pressed those arguments — that the due process clause protects fundamental rights like the right to marry and that the equal protection clause's includes protection sexual orientation classifications under some sort of heightened scrutiny.
Even Niemeyer at times seemed to suggest that he knew that the position he put forth in arguments would not carry the day, asking at one point whether the appeals court "should say, 'We pass,' and just let it go on" to the Supreme Court. At other times, he asked directly whether more narrow rulings — such as a 2012 ruling by conservative 1st Circuit Judge Michael Boudin striking down DOMA — could be applied to the case of Virginia's ban.
Though it is not known when the court will issue its ruling, Niemeyer — like everyone in the packed courtroom in Richmond Tuesday morning — already is treating the 4th Circuit, as he said, as "a way station" before this case or one of the other marriage cases makes its way back to the Supreme Court.