A panel of three judges of the Richmond-based U.S. Court of Appeals for the 4th Circuit conducted oral arguments on May 13 in Bostic v. Schaefer, an appeal by two county clerks of a district court decision that held Virginia’s ban on same-sex marriage unconstitutional. The 4th Circuit had previously granted intervenor status on the appeal to the plaintiffs in another pending marriage case, Harris v. Rainey, so both pending federal court challenges to the Virginia ban were heard in this consolidated case.
However, since the state of Virginia has now lined up with the plaintiffs, agreeing that the ban is unconstitutional, the only parties appealing at this point are two county clerks, George E. Schaefer III and Michele McQuigg. They were represented in the arguments by David B. Oakley, a private attorney retained by Mr. Schaefer, and Austin Nimocks, an attorney from the anti-gay litigation firm “Alliance Defending Freedom,” representing Ms. McQuigg.
Former U.S. Solicitor General Ted Olson, who represented the challengers to California Proposition 8 in the case that went to the Supreme Court last year, represents the plaintiffs from the Eastern District of Virginia, Timothy Bostic and Tony London, seeking the right to marry, and Carol Schall and Mary Townley, seeking recognition of their out-of-state marriage. James Esseks, Director of the LGBT Rights Project of the ACLU, represented a class of all same-sex couples in Virginia as certified by the Western District of Virginia district court, but their class representatives are also two same-sex couples, Joanne Harris and Jessica Duff, and Christy Berghoff and Victoria Kidd, also one married seeking recognition and the other seeking to marry.
Since the change in administration in Virginia led to a change in the state’s position, Virginia’s Solicitor General, Stuart A. Raphael, appeared on behalf of the state to urge the court to affirm the ruling by District Judge Arenda L. Wright Allen that the Virginia ban violates the 14th Amendment.
Three-judge panels in the 4th Circuit are generated by a computer program to assure random selection, and this was a particularly diverse panel. Presiding as the most senior judge was Paul V. Niemeyer, appointed to the court by President George H.W. Bush. The circuit’s first African-American judge, Roger L. Gregory, was originally appointed to the court by Bill Clinton on a recess appointment late in his administration, and then was renominated by George W. Bush as part of a deal to break the deadlock on Bush’s first circuit court appointments. Finally, Judge Henry F. Floyd was appointed to the circuit court by President Barack Obama. Judge Floyd previously served on the district court by appointment of President George W. Bush, but before his judicial service had been a Democratic state legislator. Sorting out the political backgrounds of the appointees doesn’t get one very far with this panel.
One thing was sure from the outset, however, based on the questioning and comments from the bench. As much as he cautioned counsel and spectators from making assumptions based on his questions, it seemed very clear that Judge Niemeyer was extremely resistant to the idea that the Constitution might compel the state of Virginia to allow same-sex couples to marry. His questioning showed that he viewed the Supreme Court’s decision last June in U.S. v. Windsor, the DOMA case, as being heavily influenced by federalism. Even though Justice Anthony M. Kennedy’s decision stated explicitly that the Court was deciding the case based on the 5th Amendment Due Process and Equal Protection requirements and not specifically on federalism concerns, Kennedy’s opinion devoted several pages to discussing the traditional role of the states in deciding who can marry and the traditional approach of the federal government to accepting as legal for federal purposes those marriages allowed by the states. Attorneys Oakley and Nimocks both pressed this view repeatedly: that Windsor was really a federalism case, and that it was narrowly focused on the question whether the federal government could refuse to recognize a marriage that a state had decided to recognize.
In the Windsor case, Edie Windsor and Thea Spyer had married in Canada. By the time Spyer passed away in 2009, New York appellate courts were recognizing same-sex marriages from out of state, even though New York did not pass its own marriage equality law until 2011. Windsor was suing for an estate tax refund, arguing that the Internal Revenue Service should have honored New York’s recognition of her marriage, and treat her as a surviving spouse exempt from estate taxes on her inheritance from her wife.
Nimocks hammered the point home by referring to the last paragraph of Justice Kennedy’s opinion for the Supreme Court: “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.”
In other words, Nimocks argued, the Windsor case was specifically about the right of the states to decide who could marry and which marriages to recognize, and rejected the authority of the federal government to decree that certain marriages recognized by the state would not be recognized by the federal government. According to Nimocks, Windsor is essentially irrelevant to the question whether the 14th Amendment requires states to allow or recognize same-sex marriages.
Arguing on behalf of the plaintiff couples from Virginia, Olson, Esseks and Raphael emphasized how constitutional doctrine has developed over the course of Supreme Court decisions to the point where the district court’s conclusion in this case was, in Raphael’s words, “ineluctable.” Olson’s argument devolved into rapid back-and-forth statements with Judge Niemeyer, who seemed particularly combative in rejecting the idea that the union of a same-sex couple could be seen as “the same” as a different-sex couple. He insisted that the word “marriage” should not be used for such a couple, because same-sex couples have a “different relationship.” He conceded that the state might want to confer the rights and benefits long associated with marriage on same-sex couples, but stated that this was a decision for the state to make. Although Oakley had focused in his remarks on the significance of Virginia voters having supported the marriage amendment by a clear majority (56%, which is not all that impressive considering the margins by which such amendments were passed in some other states), Niemeyer’s comments didn’t seem to place particular weight on that. He insisted that it was not “particularly useful” to compare the “new relationship” of same-sex unions with heterosexual unions.
The other judge on the panel who gave rather clear signals of his sympathies was Judge Gregory, who particularly hammered Nimocks when he got up to make a rebuttal argument at the end of the allotted hour. Gregory continued questioning well past the flashing red light on the podium, although Judge Niemeyer good-humoredly said they could keep going as long as Gregory had questions.
Nimocks kept coming back to the argument that Virginia had an interest in ensuring that children benefited from “diverse parenting” from a father and a mother, and argued that some right to “genderless” marriage was not entitled to due process protection because it was not historically deeply rooted. Indeed, he appeared to be avoiding referring to a “right to marry,” instead saying over and over again that the right identified by the Supreme Court in the numerous decisions that Olson referred to was the “right to enter into the union of a husband and a wife.” Gregory asked Nimocks about how his concern for the welfare of children played out with the children being raised by same-sex couples, pointing out that same-sex couples can have children and raise children, and he characterized as “disingenuous” Nimock’s purported concern for the welfare of children. There seemed little doubt that Gregory was for affirmance.
So the swing vote on this panel will come from Judge Floyd, and he was relatively silent during the argument by comparison to his two colleagues. However, during Oakley’s opening argument, Floyd made a point of asking about whether the right to marry is an individual right of choice of a marital partner as opposed to a right of couples, and he also particularly focused in during Nimock’s argument about the justification for Virginia refusing to recognize same-sex marriages contracted out of state, especially when children were involved.
Esseks focused on the question of what level of scrutiny the court should use in evaluating Virginia’s ban, arguing that some form of heightened scrutiny should apply, requiring Virginia to justify its discriminatory ban. Niemeyer pushed back on this, pointing out that the Supreme Court has never specifically held that sexual orientation discrimination merits heightened scrutiny, and opining that Windsor is a “difficult opinion to read,” circling back to his opening depiction of it as a federalism case. Esseks responded with a description of the “triggers” for heightened review that the Supreme Court has responded to in various cases, and arguied that several of them applied to the Virginia marriage ban. Perhaps tipping his hand on where his thinking is going, Judge Floyd asked about the approach taken by the Boston-based U.S. Court of Appeals in its DOMA ruling, which involved “careful review” as opposed to “heightened scrutiny.” Ultimately, Esseks argued, the marriage ban would have to fall even under traditional rational basis review, because excluding same-sex couples from marriage didn’t advance any of the policy goals identified by the state.
Solicitor General Raphael provide a strong doctrinal argument, showing how the Supreme Court’s decision over the past several decades had rendered Baker v. Nelson, the Supreme Court’s 1972 dismissal of a same-sex marriage appeal, irrelevant. He also argued, as Olson had argued, that the marriage ban discriminated not only on the basis of sexual orientation but also on the basis of gender, and thus merited heightened scrutiny on that ground. “This is an explicit gender classification,” he said, and cited a prior opinion by Judge Niemeyer for the point that laws using gender classifications should be subjected to heightened scrutiny, which puts the burden on the state to prove that the classification substantially advances an important state interest. But, as Olson had argued, there is no evidence that banning same-sex marriage makes it more likely that different-sex couples will marry and have children.
Raphael also took on the federalism argument. Acknowledging that the Windsor decision devoted substantial attention to the traditional role of the states in defining marriage, he pointed out that the States remain bound by federal constitutional requirements. “The Bill of Rights trumps federalism,” he stated. Of course, this case is about the 14th Amendment, not the Bill of Rights, but his reference was, in the context of the Windsor case, to a provision of the Bill of Rights, the 5th Amendment, which places the same substantive limitations on the federal government that the 14th Amendment, adopted after the Civil War to assure full citizenship to the recently-freed slaves, places on the states.
The bottom line? As with last month’s 10th Circuit arguments in the Utah and Oklahoma cases, it appears that at least one member of the panel is predisposed to reverse the district court’s opinion, one member seems clearly disposed to affirm it, and the last is harder to read. However, as with the 10th Circuit, it appeared possible, from reading the tea leaves of questions and comments, that the “swing” voter might swing in favor of invalidating the ban.
However, as Judge Neimeyer said early on, the 4th Circuit is just a “way station” on the way to the Supreme Court. With the Supreme Court’s Utah stay and the subsequent stays placed by district courts and circuit courts on the pro-marriage equality rulings rendered thus far, it is clear that further extension of same-sex marriage rights through the courts will depend, ultimately, not on what the courts of appeals say, but what the Supreme Court says, probably sometime in 2015.