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| Appeals court judges seem sharply divided over Virginia ban on gay marriage | |
| (about 4 hours later) | |
| RICHMOND — Virginia’s ban on same-sex marriage and civil unions got an emotional hearing before a federal appeals court Tuesday, even as one of the judges described the court’s deliberations as a likely “way station” on a journey to the Supreme Court. | |
| Two judges dominated questioning at the hearing at the U.S. Court of Appeals for the 4th Circuit on whether Virginia has a right to ban same-sex unions or whether marriage is a fundamental right protected by the constitution that must be offered regardless of sexual orientation. | |
| The panel was reviewing a February decision of a Norfolk federal district judge that Virginia’s comprehensive ban — it also bars recognition of same-sex marriages performed in states where it is legal and any legal arrangement that resembles marriage — violates constitutional guarantees of equal protection and due process. | |
| U.S. District Judge Arenda L. Wright Allen issued a sweeping 41-page opinion that drew comparisons to Virginia’s past prohibition to interracial marriage, the challenge of which led to a landmark Supreme Court ruling. | U.S. District Judge Arenda L. Wright Allen issued a sweeping 41-page opinion that drew comparisons to Virginia’s past prohibition to interracial marriage, the challenge of which led to a landmark Supreme Court ruling. |
| She struck down the constitutional amendment prohibiting same-sex marriage that Virginia voters approved in 2006. | |
| Circuit Judge Roger L. Gregory seemed to strongly agree, and continually compared the case to Loving v. Virginia, in which the Supreme Court struck down Virginia’s ban on interracial marriage. | |
| “The essence of marriage,” Gregory told a lawyer representing the two circuit court clerks who are defending Virginia’s restrictions, “is the individual’s choice to marry the person they choose.” | |
| Judge Paul V. Niemeyer, on the other hand, said that the fundmental right to marriage that the Supreme Court has recognized as constitutionally protected is that of a “union of husband and wife.” | |
| Same-sex relationships, he said, is a kind of “brand new” relationship that states may be free to welcome or prohibit. | |
| The third judge on the randomly assigned panel was Henry F. Floyd, who largely stayed out of the fray. He did ask those defending the state why Virginia may prohibit recognition of same-sex marriages performed in other states where they are legal. | |
| The arguments ran longer than the scheduled hour. 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. | |
| Niemeyer was nominated to the court in 1990 by President George H.W. Bush; Gregory was a recess appointment by President Bill Clinton in 2000 who was subsequently nominated by President George W. Bush; and Floyd was nominated as a district judge by George W. Bush in 2003 and named to the appeals court by President Obama in 2011. | |
| The review makes the 4th Circuit the second appeals court to consider whether state bans on same-sex marriage are unconstitutional. The U.S. Court of Appeals for the 10th Circuit in Denver has already heard arguments about, but not ruled on, district court rulings that struck down bans in Utah and Oklahoma. | The review makes the 4th Circuit the second appeals court to consider whether state bans on same-sex marriage are unconstitutional. The U.S. Court of Appeals for the 10th Circuit in Denver has already heard arguments about, but not ruled on, district court rulings that struck down bans in Utah and Oklahoma. |
| The court decisions followed 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. | The court decisions followed 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. |
| The divided court allowed gay marriages to resume in California after dismissing a challenge on procedural grounds, and struck part of the Defense of Marriage Act (DOMA) that prohibited the federal government from recognizing same-sex unions performed in states where they are legal. | The divided court allowed gay marriages to resume in California after dismissing a challenge on procedural grounds, and struck part of the Defense of Marriage Act (DOMA) that prohibited the federal government from recognizing same-sex unions performed in states where they are legal. |
| Since those rulings, federal judges have used the court’s reasoning in the DOMA case to strike bans in Utah, Oklahoma, Virginia, Texas and Michigan. Additionally, judges in Kentucky, Tennessee and Ohio have said those states must recognize gay marriages performed elsewhere. | Since those rulings, federal judges have used the court’s reasoning in the DOMA case to strike bans in Utah, Oklahoma, Virginia, Texas and Michigan. Additionally, judges in Kentucky, Tennessee and Ohio have said those states must recognize gay marriages performed elsewhere. |
| And state courts in New Jersey, New Mexico and, last week, Arkansas, have held that same-marriages must be allowed. Because the Virginia decision was stayed, the Arkansas ruling meant that for the first time gay couples were allowed to marry in one of the former states of the Confederacy. | And state courts in New Jersey, New Mexico and, last week, Arkansas, have held that same-marriages must be allowed. Because the Virginia decision was stayed, the Arkansas ruling meant that for the first time gay couples were allowed to marry in one of the former states of the Confederacy. |
| The Virginia case is usual because Attorney General Mark R. Herring (D) announced shortly after taking office this year that he agreed with challengers that the state’s restrictions are unconstitutional. | |
| The laws are being defended by Norfolk circuit clerk George Schaefer III, who denied a marriage license to two of the challengers, and Prince William circuit clerk Michel McQuigg, who intervened in the case and is being represented by the Alliance Defending Freedom, which is defending other state bans. | The laws are being defended by Norfolk circuit clerk George Schaefer III, who denied a marriage license to two of the challengers, and Prince William circuit clerk Michel McQuigg, who intervened in the case and is being represented by the Alliance Defending Freedom, which is defending other state bans. |
| David Austin R. Nimocks, one of the organization’s lawyers, told the court in briefs that the Supreme Court’s decisions last summer did not preclude state-by-state decisions on whether to trade the tradition of “gendered” marriage for same-sex unions. | David Austin R. Nimocks, one of the organization’s lawyers, told the court in briefs that the Supreme Court’s decisions last summer did not preclude state-by-state decisions on whether to trade the tradition of “gendered” marriage for same-sex unions. |
| He said the state’s interest in heterosexual marriage was to make sure that children are raised in a home with a mother and father. | He said the state’s interest in heterosexual marriage was to make sure that children are raised in a home with a mother and father. |
| If marriage were open to all, he said, “it is likely that, over time, fewer man-woman couples having or raising children will marry, that marriages will become less durable, and that fewer children will be raised in stable homes headed by their married mother and father.” | If marriage were open to all, he said, “it is likely that, over time, fewer man-woman couples having or raising children will marry, that marriages will become less durable, and that fewer children will be raised in stable homes headed by their married mother and father.” |
| Wright Allen dismissed those concerns in her February ruling. | Wright Allen dismissed those concerns in her February ruling. |
| “Gay and lesbian individuals share the same capacity as heterosexual individuals to form, preserve and celebrate loving, intimate and lasting relationships,” Wright Allen wrote. “Such relationships are created through the exercise of sacred, personal choices — choices, like the choices made by every other citizen, that must be free from unwarranted government interference.” | “Gay and lesbian individuals share the same capacity as heterosexual individuals to form, preserve and celebrate loving, intimate and lasting relationships,” Wright Allen wrote. “Such relationships are created through the exercise of sacred, personal choices — choices, like the choices made by every other citizen, that must be free from unwarranted government interference.” |
| The lawsuit was brought on behalf of two Virginia couples. Timothy Bostic and Tony London have lived together for more than 20 years and were denied a marriage license last summer by Schaefer. Mary Townley and Carol Schall of Chesterfield County were married in California and have a teenage daughter. They want Virginia to recognize their marriage. | The lawsuit was brought on behalf of two Virginia couples. Timothy Bostic and Tony London have lived together for more than 20 years and were denied a marriage license last summer by Schaefer. Mary Townley and Carol Schall of Chesterfield County were married in California and have a teenage daughter. They want Virginia to recognize their marriage. |
| Their cause was joined last fall by lawyers Theodore Olson and David Boies. Along with the American Foundation for Equal Rights, they challenged California’s ban on same-sex marriage and pressed the Supreme Court to recognize a fundamental right to marriage that states may not prohibit. | Their cause was joined last fall by lawyers Theodore Olson and David Boies. Along with the American Foundation for Equal Rights, they challenged California’s ban on same-sex marriage and pressed the Supreme Court to recognize a fundamental right to marriage that states may not prohibit. |
| They joined the case in hopes that quick rulings in Virginia courts might get the issue before the high court again. | They joined the case in hopes that quick rulings in Virginia courts might get the issue before the high court again. |
| Also challenging the ban is the American Civil Liberties Union and Lambda Legal. They brought suit in Harrisonburg on behalf of two lesbian couples who represent Virginia’s gay couples who might want to marry. | Also challenging the ban is the American Civil Liberties Union and Lambda Legal. They brought suit in Harrisonburg on behalf of two lesbian couples who represent Virginia’s gay couples who might want to marry. |
| After Wright Allen’s decision, the judge hearing that case put it on hold. The appeals court allowed lawyers to intervene in the appeal. | After Wright Allen’s decision, the judge hearing that case put it on hold. The appeals court allowed lawyers to intervene in the appeal. |