A legal challenge to Virginia's same-sex marriage ban went before the Fourth Circuit Court of Appeals on Tuesday, resulting in a split court that could very well end up striking down the ban. Of the dozens of lawsuits challenging state same-sex marriage bans in the wake of the Supreme Court's Windsor decision last year, the Virginia case is definitely one of the more interesting ones. That's in part because the state's attorney general has declined to defend his state's ban after determining that it is unconstitutional. Instead, Norfolk circuit clerk George Schaefer III is defending the state law, joined by another circuit clerk and the state's registrar of vital records.
The court didn't announce which three judges would hear the case until earlier on Tuesday. As it turns out, the Virginia case drew one of the most conservative judges on the court, Paul V. Niemeyer, a George H. W. Bush appointee who will almost certainly decide in favor of the ban. But according to early reports from the court, namely those of Buzzfeed's Chris Geidner, the other two judges on the panel seem to be leaning towards striking down the ban (The Washington Post's Robert Barnes, however, described one of the judges as "hard to read"). Those are judges Roger L. Gregory (a Clinton recess appointee who was later nominated by George W. Bush) and Henry F. Floyd (a George W. Bush district judge who was nominated for the appeals court by Obama). Gregory in particular seemed interested in pushing back against the state's — and Niemeyer's — argument that "traditional" marriage needs to be "protected" in the name of children:
Gregory: "It's really disingenuous, your interest in children." He questioned argument that state was interested in protecting children.— Chris Geidner (@chrisgeidner) May 13, 2014
While Floyd will be the swing vote between Gregory's strong opposition to the ban, and Niemeyer's apparent support for it. We're expecting more on the oral arguments to come out over the next few hours; we'll update this post when that happens. (Update: the oral arguments audio is available here.)
The case, of course, is also interesting because of its historical resonances. The Supreme Court's landmark decision against bans on interracial marriage was 1967's Loving v. Virginia, an opinion that U.S. District Judge Arenda L. Wright Allen referenced in her earlier decision against Virginia's same-sex marriage bans. As has been the case in most states battling legal challenges to state bans, Allen's decision was stayed pending appeal. Virginia's laws ban same-sex marriage, recognition of same-sex marriages performed in other states, and any sort of legal arrangement for a same-sex couple that resembles a marriage. The laws were approved by the state's voters in 2006. As of March 2014, 50 percent of the state's voters supported allowing same-sex couples in the state to marry, while 42 percent opposed.
This is the third challenge to a same-sex marriage ban to go before a federal appeals court over the past few months. In April, the Tenth Circuit Court of Appeals separately heard arguments in challenges to Oklahoma and Utah's same-sex marriage bans. It's expected that one or more of these cases will end up in the hands of the Supreme Court as early as next year.