For over an hour today in a courtroom filled with almost as many lawyers and journalists as spectators, a three-judge panel of the Fourth Circuit Court of Appeals heard arguments in a challenge to Virginia's ban on same-sex marriage.
Virginia's marriage laws are some of the strictest in the nation, banning not only same-sex marriage, but refusing to recognize out-of-state same-sex marriages or civil unions.
Judge Roger L. Gregory appeared to be the most vocal critic of the ban. "A fundamental right to marry, is that an individual right?" he asked a lawyer supporting the ban.
He suggested the "essence" of the right is an individual's choice of a partner.
He added, "How can Virginia define it to a point so that its fundamental essence is unrecognizable?"
Gregory was concerned for the welfare of children of same-sex couples who are denied the benefits of marriage. "Why would Virginia rip that from a child?" he asked.
Judge Paul V. Niemeyer, on the other hand, said that while marriages have been historically defined as between a man and a woman, same-sex marriages are "different relationships." He said the marriage relationship as understood by the Supreme Court is limited to a man and a woman. "We now have a new relationship," he said in referring to same-sex couples.
The third Judge, Henry F. Floyd, asked far fewer questions than his two bench mates.
"We saw the judges and lawyers struggling with the definition of marriage," says Kevin. C. Walsh a law professor at the University of Richmond School of Law. "Everyone agreed that there is a fundamental right to marriage, the disagreement was about how to define that fundamental right." Walsh served as a law clerk to Judge Niemeyer in 2002.
The case was brought by Virginians Timothy B. Bostic and Tony C. London who have been in a committed relationship since 1989, and Carol Schall and Mary Townley who were legally married in California in 2008 and are raising a 16-year-old daughter. Virginia does not recognize their marriage. They were represented by powerhouse lawyers Theodore Olson and David Boies.
Olson said the marriage laws "single out for discrimination a class of Virginians" and excludes them from marriage while also prohibiting domestic partnership.
Olson said the ban "does grave damage and violates Equal Protection and Due Process." Olson got in a heated exchange with Judge Niemeyer, and at one point said that under the law his clients are considered "second class citizens."
James D. Esseks, the director of the ACLU Lesbian and Gay Bisexual Transgender and AIDS project, argued on behalf of a different set of plaintiffs-two lesbian couples who have brought a class action suit challenging the ban. Last year, Esseks was part of the legal team that successfully won the Windsor case at the Supreme Court striking down a part of a federal law that defined marriage as between a man and a woman. Since the Windsor decision not one federal court has upheld a state ban on gay marriage.
Judge Niemeyer made reference to the Windsor opinion but said, "I confess it's a difficult opinion to read and get exactly what is being held."
In court today, Virginia's Solicitor General declined to defend the ban. In January 2014, newly sworn-in Attorney General Mark Herring told the court that while he would continue to enforce Virginia's ban, he would not defend it in court because he believes that it violates the Constitution.
The task of defending the ban fell in part to a lawyer who represents a clerk of the circuit court in Prince Williams County. David Austin R. Nimocks of the Alliance Defending Freedom referenced the fact that while Virginia bans same-sex marriage, other states, such as New York allow it. "The Constitution does not require that Virginia do what New York did," Nimocks said.
In court papers he argued, "Marriage is inextricably linked to the fact that man-woman couples, and only such couples, are capable of naturally creating new life together, therefore furthering, or threatening, society's interests in responsibly creating and rearing the next generation."
He said that while some seek to "redefine marriage from a gendered to a genderless institution" many others "sincerely believe that redefining marriage as a genderless institution would obscure its animating purpose and thereby undermine its social utility."
A district court judge struck down the ban last February, saying that it unconstitutionally denied "Virginia's gay and lesbian citizens the fundamental freedom to choose to marry."
Many believe that the issue of same-sex marriage could return to the Supreme Court as early as next term. At the beginning of arguments today Judge Neimeyer told the lawyers it was "pretty evident you are here in Richmond as a way station" before heading to Washington D.C.