Fourth Circuit panel divided on Virginia same-sex marriage ban (updates)

The Virginia same-sex marriage case of Bostic v. Schaefer was heard by a panel of the Fourth Circuit Court of Appeals today, which appeared to be sharply divided to courtroom observers.  The New York Times reports, Virginia’s Ban on Same-Sex Marriage Before Federal Panel:

EqualIn sharp exchanges pitting the right of states to set marriage rules against equal protection for gay and lesbian couples, a three-judge federal appeals panel here heard arguments (listen) Tuesday on the constitutionality of Virginia’s ban on same-sex marriages.

The panel of the United States Court of Appeals for the Fourth Circuit appeared to be divided on the issues in what legal experts consider a crucial case that could propel the marriage question to the Supreme Court in the coming year.

“Is this a constitutional issue of magnitude or a democratic issue that can be decided by the states?” asked the presiding judge, Paul V. Niemeyer, in one of several comments that seemed to suggest support for Virginia’s restrictive law.

A second judge, Roger L. Gregory, gave strong indications of support for equal treatment of gay and lesbian couples. As lawyers defended Virginia’s restrictions as a reasonable attempt to foster procreation and child welfare, Judge Gregory pressed them, asking “Do same-sex couples have children? Do you think that child wants less of the dignity of marriage than any other child?”

It appeared that the third panelist, Henry F. Floyd, who spoke relatively little, might provide the decisive vote. His few questions did, however, suggest support for overturning Virginia’s ban.

Judge Floyd was appointed to the appeals court by President Obama. Judge Gregory won a recess appointment by President Bill Clinton and was later nominated by President George W. Bush, while Judge Niemeyer was named by the elder President George Bush.

The appeals panel must decide whether to uphold the ruling in February by Judge Arenda L. Wright Allen, of United States District Court for the Eastern District of Virginia, which struck down the voter-approved amendment restricting marriage to a man and a woman and forbidding recognition of same-sex marriages or civil unions from other states. In a ringing opinion, Judge Wright Allen held that the historical moment had arrived when “’We the People’ becomes more inclusive.”

The hearing here came 10 years to the week after the first legal same-sex marriage in the United States, in Massachusetts on May 17, 2004. Today, 17 states, and the District of Columbia, offer same-sex marriages. Federal or state courts have called for it in others, and more than 70 challenges to restrictive laws are now pending in at least 30 states.

USA Today reports, Va. appeals court hears case against gay marriage ban:

Amid hundreds of protesters who could be heard chanting inside the courthouse, a three-judge federal appeals court panel heard arguments over a federal judge’s decision to overturn Virginia’s constitutional ban on gay marriage.

* * *

“My clients have a second-class relationship,” said Ted Olsen, arguing on behalf of Timothy Bostic and Tony London of Norfolk who were denied a marriage license by clerk of courts George Schaefer last July.

Olsen spent much of his time defending Allen’s decision, saying “The right to marriage is fundamental for all people.”

Arguing for Schaefer, attorney David Oakley said that Virginia’s constitutional ban on same-sex marriage “does not violate the 14th amendment for equal protection,” which Allen cited in her decision.

Oakley said under our system of federalism, “states have the right to regulate marriage.”

Citing previous court rulings, Oakley said, “When it is a matter of public debate, it’s best left for the state to decide.”

In response, Judge Henry Floyd pressed Oakley by stating “states can’t trample on the 14th Amendment.”

Oakley countered, “Over 1.3 million voters in Virginia chose to preserve marriage as between a man and a woman.”

The other issue argued by both sides was whether the state had a “societal interest” in defining marriage as between a man and a woman.

Austin Nimmocks, an attorney from the Alliance Defending Freedom, which represents Prince William County, argued that previous “court cases upheld the right to enter into man-woman marriages in order to consummate marriages,” which is an important societal interest.

Judge Roger Gregory pressed Nimmocks on that argument, saying that elderly couples who cannot procreate, and other couples who medically cannot procreate, have their marriages protected.

Nimmocks says that all previous cases only upheld unions “between husband and wife.”

* * *

Attorneys for the group arguing in defense of the same-sex marriage ban say they are here to defend Virginia voters. Jordan Lorence, senior counsel for the Alliance Defending Freedom, represents the Prince William County Clerk of Courts.

“The Supreme Court should do, as well as the 4th Circuit and the other federal appeals courts, is to make a clear declaration that the voters, the legislatures are the ones that have the authority to do this and that it is a legitimate, non-bigoted decision to say that marriage is only defined as one man and one woman.”

It’s likely that whichever way the 4th Circuit Court of Appeals rules, this case is headed to the U.S. Supreme Court. In the middle of arguments, presiding Judge Paul Niemeyer joked, “It’s evident that you are here in Richmond as a weigh station on the way to Washington.”

Bostic vs. Schaefer is the third appeal of a state’s ban on gay marriage that has reached the federal appeals court level. In April, cases from Utah and Oklahoma were both heard by the appeals court in Denver. Those cases have not been ruled on yet. Those cases could get bundled with the Virginia case at the Supreme Court, according to attorneys familiar with the cases.

The panel did not indicate a timetable as to when they will rule. However, it’s likely to be quick as the Richmond circuit is known as the “rocket docket” where decisions typically come faster than in other courts.

In another development, On May 5, 2014, a federal district court in Boise, Idaho heard oral argument on a motion for summary judgment filed by four couples in the case of Latta v. Otter, who asked the court to strike down Idaho’s marriage ban and order the state to allow same-sex couples to marry and to recognize the marriages of couples who married in other states.

Lyle Denniston at SCOTUSblog.com reports today, Idaho: Quick appeal on same-sex marriage? :

Idaho’s governor has told a federal judge that, if she strikes down the state’s six-year-old ban on same-sex marriage, state officials may ask the Supreme Court to take on the issue immediately, without waiting for an appeal through the U.S. Court of Appeals for the Ninth Circuit.  Lawyers for Governor C.L. “Butch” Otter laid out that alternative in a plea on Monday (.pdf) for an order — now, before any ruling is made – to postpone such a decision to allow an appeal to go ahead.

The motion made three main arguments for a “contingent” delay order:  first, the Supreme Court has already signaled that it does not want any same-sex marriages to occur until it can give “an authoritative ruling” on the issue; second, the Supreme Court also has indicated that it intends to grant review of the issue; and, third, there has been “chaos, confusion, conflict, uncertainty,” and new court fights in states where a court has nullified a ban but same-sex marriages were temporarily allowed before a stay was granted.

The Idaho case is one of more than seventy lawsuits filed in federal and state courts across the country.  By agreement of those involved in the Idaho case, it is being tried and will be decided by a magistrate judge, Candy W. Dale of Boise.  In that situation, federal law and court rules say, her decision will be final at the trial level, and any appeal would normally go to the Ninth Circuit Court and then on, potentially, to the Supreme Court.

[The Ninth Circuit Court of Appeals same-sex marriage case from Nevada, Sevcik v. Sandoval, is still waiting to be rescheduled for oral argument.]

Chief Magistrate Judge Dale held a hearing May 5 on a series of motions to resolve the case without a full trial, and she is expected to rule soon.  The case was filed in November by four same-sex couples, two who seek to marry and two who have been married in other states and want Idaho to recognize the legality of their union.  Under Idaho’s ban, adopted by the voters in 2006 by a margin of sixty-three to thirty-seven percent, such marriages are neither allowed nor recognized in the state.

Governor Otter’s move on Monday on the potential appeal path of the case appeared, from the reasoning in the supporting legal memorandum, to be based partly on a perception that the Supreme Court is poised to take an early case on the question, and partly on a sense of urgency about getting the ultimate issue settled before any more same-sex marriages are allowed to actually occur.

While the governor did not promise a definite plan to take the Idaho case directly to the Supreme Court after Judge Dale ruled, the motion made clear that such a plan was an alternative to attempting first to challenge the ruling in the Ninth Circuit.  The Ninth Circuit has already indicated that it may be a sympathetic tribunal for same-sex marriage, and that could be a factor in the Idaho governor’s planning.

The filing put much emphasis on the Supreme Court’s action on January 6, blocking a federal judge’s decision striking down Utah’s ban . . . The Idaho filing on Monday called the Supreme Court’s order on Utah an “extraordinary measure,” and interpreted it to mean several things:  the Justices understand that only their Court can resolve the issue finally; the Justices intend to grant review to rule on the ultimate question; and they intend ”that same-sex marriages not occur in contravention of state law during the months leading up to the Supreme Court’s authoritative ruling.”

The question of staying a ruling in Arkansas in favor of same-sex marriages is also before the Arkansas Supreme Court on Tuesday afternoon, on a request by state officials to delay during an appeal a decision last Friday by a state trial judge in Little Rock against the ban.

Attorneys for the couples asked the state Supreme Court on Tuesday to deny motions to stay Pulaski County Circuit Judge Chris Piazza’s decision striking down the 2004 constitutional amendment and 1997 law banning same-sex marriage. Lawyers: Don’t suspend gay-marriage ruling. The attorneys argue the state hasn’t shown irreparable harm will result if Piazza’s order stands. A ruling is pending.

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