The Fourth Circuit U.S. Court of Appeals hearing Tuesday was, as Judge Paul Niemeyer characterized it, just one step along the way to an eventual U.S. Supreme Court ruling on whether states, like Virginia, can ban same-sex couples from marrying. But it was a dramatic 70-minute clash between lawyers and judges on both sides of marriage equality.

While court observers expect to hear arguments stated forcefully from attorneys representing each side of a conflict, they were witness, in Schaefer v. Bostic, to an unusual display of passionate views from two of the three judges at the panel hearing in Richmond.

In one corner: Niemeyer, an appointee of President Reagan (to the district court) and President George H.W. Bush (to the Fourth Circuit). He expressed concern that allowing same-sex couples to marry could lead to polygamy or a man marrying his daughter. He said that every person in the world comes from a male-female relationship and that, because same-sex couples can’t have children, they don’t need the protection of marriage laws, just some sort of “parallel” to marriage. He rejected the idea that the Supreme Court’s rulings in Romer v. Evans, Lawrence V. Texas, and U.S. v. Windsor –about “orientation and so forth”– have any relevance to deciding the constitutionality of Virginia’s ban. And, though he warned that one “shouldn’t pin my questions as to any position” he might hold, he stated fairly emphatically that the key meaning of the Supreme Court’s striking down of the Defense of Marriage Act (DOMA) in Windsor was its recognition of the states’ right to define marriage.

In the other corner: Judge Roger Gregory, a recess appointee of President Clinton who was reappointed by President George W. Bush and became the first African American member of the Fourth Circuit bench. Gregory countered that, while states have certain authority, they “can’t trample” the U.S. Constitution. He rebuffed an assertion that the government needs to define marriage to encourage opposite sex couples to marry and have babies, saying it sounded like a “totalitarian system where people are baby makers and you get married for the interest of the state.” And he derided an attorney’s attempt to claim Virginia’s marriage law was to protect the biological children of male-female couples; if the state is interested in protecting children, he asked, how can it ignore that same-sex couples have children and that some male-female couples adopt children.

In the metaphorical middle: Judge Henry Floyd, an appointee of President Obama who was recommended by Republican U.S. Senator Lindsey Graham. Floyd had little to say and ask. But he did say he thinks the “main thrust” of the Supreme Court’s ruling in Windsor “isn’t all that clear.” And he seemed to wrestle with what level of judicial scrutiny should be applied in determining whether Virginia’s ban on same-sex marriage passes constitutional muster.

The case before the panel was brought by two clerks, appealing a decision in February by U.S. District Court Judge Arenda Wright Allen (Obama appointee). Allen, like three federal judges before her and seven since, ruled that Virginia’s ban violates the equal protection and due process guarantees of the U.S. Constitution.

Constitution v. the people

Attorney David Oakley represented Norfolk clerk George Schaefer who refused to issue marriage licenses to the same-sex couple plaintiffs. Alliance Defending Freedom attorney Austin Nimocks represented Fairfax clerk Michele McQuigg, who sought intervenor status after Virginia Attorney General Mark Herring announced he would not defend the ban because he had determined it is unconstitutional.

Oakley called the lower court decision a “broad and sweeping” opinion that represents a “dramatic departure from existing law.” He relied heavily on the argument that “states have the near exclusive right” to define and regulate marriage. But he also argued that, when an issue is the subject of an important public debate, courts should defer to the “democratic process and fundamental rights of the voters.” It was “demeaning” to Virginia voters, he said, to ignore their wishes, as expressed in the 2006 vote.

In 2006, he noted, 57 percent of voters approved the ban. (Oakley did not mention that the latest poll showed 50 percent of Virginians now favor allowing same-sex couples to marry compared to 43 percent who oppose.)

Oakley said the governmental interest in defining marriage is to “steer the procreative potential of opposite sex couples toward the notion of marriage in order to protect the children.”

“Protect the children?” asked Gregory. “Sounds like a totalitarian system where people are baby makers and you get married for the interest of the state.” If the governmental interest concerns procreation, he asked, why doesn’t Virginia ban 90-year-old people from marrying.

“You can’t,” said Oakley, “because there’d be no way to constitutionally put a procreation requirement on marriage.” Oakley then reiterated a point often used by attorneys arguing for same-sex marriage bans: that only with opposite sex couples is there the potential for “accidental” pregnancy and thus the need to encourage marriage and protect children.

Oakley also tried to argue that “same-sex marriage” does not qualify as a fundamental right because it is not “deeply rooted” in America’s history and tradition. When he noted that only in recent years have same-sex couples been able to marry and that only 17 states permit it, Gregory interjected, “Same thing was true in Loving,” referring to the landmark decision in Loving v. Virginia, in which the Supreme Court struck down laws in Virginia and other states prohibiting interracial marriage.

To that, Oakley pointed to the marriage of Pocahontas and John Rolfe in colonial Virginia, noting that interracial marriage was not prohibited in the early 1600s. (He did not mention that neither was marriage between same-sex couples.)

‘They can’t produce children’

The Alliance’s Nimocks said the Fourth Circuit must decide whether the U.S. Constitution or its people get to decide who can marry. He, too, emphasized marriage as a “child-centered” institution. And he argued that the fact that the U.S. Supreme Court did not, in its Windsor ruling, recognize the fundamental right of same-sex couples to marry, that is clear evidence the high court does not consider same-sex couples to have a fundamental right to marry.

Gregory challenged Nimocks to explain why, if marriage is “child centered” to benefit and protect children, the state would deny benefits and protections to the children of same-sex parents.

“Why does Virginia want to rip that embracement from the child?” pressed Gregory.

Nimocks didn’t answer that question but simply stated that the law reflects Virginia’s policy that a child is best raised with both a mother and a father.

“You agree that same-sex couples can have children?”

“Not in the same way,” said Nimocks.

Gregory sounded incredulous.

“What difference does it make? Children are children,” said Gregory. He noted that male-female couples who adopt children have children in a way that is different from male-female couples who procreate. He said Nimocks’ argument seemed disingenuous “if you care about children.”

Children came up quickly when Ted Olson, lead attorney for the two plaintiff couples, spoke and Niemeyer took him on. Olson started by saying that states cannot single out a class of people for disfavor under the law based on their sexual orientation or the gender of the person they seek to marry.

How about a nice parallel track?

At first, Niemeyer offered that “it’s in furtherance of the stability of society to recognize the union of same-sex couples and to provide them the same economic benefits and to give them the recognition to raise the dignity of the relationship.”

But he said it “doesn’t make sense” to call both male-female relationships and same-sex relationships “marriage.” Same-sex couples, he said, “can’t create the same family unit that has been recognized through history” because, he said, they can’t produce children.” Calling a same-sex relationship “marriage,” he said, is “playing with the language.”

Olson noted that many of the same arguments against same-sex marriage were raised against interracial marriages, too, citing the Loving case. But Niemeyer immediately interrupted him, saying that Loving was about racial discrimination. Olson noted that the Supreme Court had held Loving to be about marriage, too. He cited 14 different cases in which the Supreme Court discussed the fundamental right to  marriage. Niemeyer interrupted again, this time asking whether allowing same-sex marriage wouldn’t lead to a place where a man “could marry six wives or his daughter.”

“No,” said Olson, explaining that courts have recognized that there are “overwhelming societal reasons” for prohibiting polygamy and incestuous relationships. When Niemeyer asked whether the government could force a man and woman to marry, Olson said the government has never used procreation as a requirement for marriage.

“No, you’ve got that exactly backwards,” said Niemeyer, interrupting again. “They’ve never said that. They’ve said that marriage is the driving force for the family….The idea is to support this unit….That’s what Virginia is doing.”

Niemeyer repeatedly referred to same-sex relationships as “new” and “just appeared 30 years, 40 years ago,” acknowledging, as Oakley did not, that the first gay couples sought to marry in the 1970s.

“You cannot make that union the same as the union that is talked about in the Supreme Court cases,” said Niemeyer.

“It is the same,” said Olson. “…You’re saying my clients have a second-class relationship….Their children are demeaned by that.”

Niemeyer said he thought same-sex couples could have a relationship that is “parallel” to male-female marriage “with less attributes.”

Olson quickly replied that “damage is being done” to same-sex couples and their children by such second-class treatment.

Niemeyer said that should be an argument left to the legislature.

Olson said it’s a matter for the courts to determine whether laws violate the guarantees of equal protection and due process of the Constitution.

‘A rose is a rose is a rose’

Next up was James Esseks, director of the ACLU’s national LGBT Project. The ACLU and Lambda Legal have a class action lawsuit challenging the ban in a different federal district court in Virginia. The judge in their case, Harris v. Rainey, put the matter on hold pending a ruling from the Fourth Circuit in Schaefer v. Bostic. So the ACLU and Lambda sought intervenor status. Olson’s team initially opposed their request because they did not want to divide up the time any further (the Virginia solicitor general was granted part of Olson’s 30 minutes). But the court granted the motion to intervene.

“Once it did, we consolidated our efforts, divided time on a mutually acceptable basis and worked together on the argument strategy including a joint (all three of us) moot court last Friday,” said Olson Wednesday. “And, I thought our contributions complemented one another pretty well.”

Esseks noted that the Harris case represents about 14,000 same-sex couples in Virginia.

He urged the court to recognize the “enormous similarities” between the Virginia ban and the key provision of DOMA, which the Supreme Court struck down. Both define marriage as being between only male-female couples, he said, and “the purpose is similar.”

That’s when Judge Floyd said it was his “sense in reading Windsor that the main thrust in DOMA was the federal government getting involved in a very important relation that was the domain of state.”

“But that isn’t all that clear,” he added.

Virginia’s Solicitor General Stuart Rafael sought to make a distinction that few others have: that the case is about the “right to marriage, not to same-sex marriage.”

“What’s new,” he said, “is our relatively recent recognition of gay people.”

Whatever the Fourth Circuit’s eventual ruling, it will affect all the states in that circuit, which are Virginia, North Carolina, South Carolina, and West Virginia. And whatever the panel’s ruling, it will be appealed, first to the full circuit court bench and then to the U.S. Supreme Court.

Only one other federal appeals court has heard arguments on a lawsuit challenging a statewide ban on same-sex marriage since the Supreme Court issued its rulings striking DOMA and allowing a district court ruling to stand that struck down California’s ban on same-sex marriage. The latter was based, not on the constitutionality of the ban but on the lack of legal standing for the appeal. The Tenth Circuit last month heard cases from two states –Utah and Oklahoma—bringing challenges to those states bans.

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