RICHMOND — A federal appellate panel appeared split over Virginia's constitutional ban on same-sex marriage Tuesday during arguments in a case likely headed to the Supreme Court for a final interpretation on the legality of such state laws.
The often spirited hearing before a three-judge panel of the 4th U.S. Circuit Court of Appeals was held after a federal judge in February declared Virginia's voter-approved ban invalid because it violated guarantees of due process and equal protection in the U.S. Constitution.
Presiding Judge Paul V. Niemeyer, whose questioning was predominately aimed at attorneys supporting dismissal of the ban, at one point said that for argument's sake he didn't think it was useful to compare same-sex marriage to a traditional family unit "that has been recognized throughout history."
"To mix the two is to play with the language, I think," he said. "I think we have a brand new relationship we have to look at."
Judge Roger L. Gregory, who took the opposite tack from Judge Niemeyer and engaged state attorneys defending the ban, asked during the proceedings whether sexual orientation precludes a person from the same right to marry as prisoners or 90-year-old couples with little chance of producing offspring.
Austin Nimocks, an attorney defending the law, said marriage is indeed a fundamental right, but one "inextricably linked to procreation."
The issues of equal rights and protections for gay couples have been front and center as cases have wound their way toward the Supreme Court. Last year, a 5-4 majority of justices struck down as unconstitutional the federal Defense of Marriage Act, which bars the federal government from recognizing same-sex marriage in states.
In so ruling, however, the high court left unsettled the constitutionality of state bans.
Chantale Fiebig, a member of the legal team arguing for the panel to affirm the federal court ruling, said she didn't think Judge Niemeyer was stating his position on the matter but rather working through various legal arguments.
"There have repeatedly been proponents of same-sex marriage bans that have contended the right that is being sought here is some new development, some new animal, and that simply is not the case," Ms. Fiebig said. "The case law clearly indicates that the fundamental right to marry, as I think was also fairly appreciated by the panel, is an individual right."
Mr. Nimocks and David B. Oakley, who are private lawyers, found themselves defending the state law after Virginia Attorney General Mark R. Herring announced before the February ruling that he would not defend the ban on same-sex marriage.
Mr. Herring said after the arguments that he has learned not to try to predict the outcomes of cases based on questions or comments from the bench.
"But what I will say is I think all the arguments were presented very well and I'm proud to be a part of that effort," Mr. Herring said. "On questions like whether these plaintiffs and others across Virginia should have equal rights and be treated equally, they should. They can have families. They can be great parents, and they're entitled to be treated equally."
Mr. Herring said that because the case is in the 4th Circuit, the ruling could have implications for states including West Virginia, North Carolina and South Carolina, which fall under the court's jurisdiction and have either constitutional amendments barring same-sex marriage or state-enacted bans.
"Whether this is one of the cases that the Supreme Court takes or whether it's one from another circuit or whether it's a group of cases, it's difficult to predict. But I think it's one that would answer a lot of legal issues that I think need to be settled," he said.
Judge Niemeyer appeared to acknowledge that the case is likely to be appealed regardless of how the panel rules. He said the issue ultimately would be decided elsewhere.
A Reagan appointee, Judge Niemeyer was named a judge in 1987. Judge Gregory received a recess appointment from President Clinton in 2000 and was nominated to the same position by President George W. Bush in 2001.
The third judge, Judge Henry F. Floyd, was appointed by Mr. Bush in 2003. Judge Floyd asked fewer questions than the other judges during arguments.
Seventeen states and the District of Columbia have legalized same-sex marriage, and 29 states have constitutional amendments banning it. But federal judges this year — guided by the Supreme Court's opinion — have declared same-sex marriage bans in states such as Arkansas and Michigan unconstitutional.
Most recently, a federal judge on Tuesday declared Idaho's gay marriage ban unconstitutional. A federal judge also ruled in February that Kentucky must recognize same-sex marriages performed in other states.
With so much at stake, the arguments Tuesday drew hundreds of demonstrators on both sides of the issue. Crowds of people shouted slogans and held colorful signs and flags outside the Richmond courthouse.
The case in Virginia involves four plaintiffs. Timothy Bostic and Tony London applied for a marriage license from the Norfolk Circuit Court clerk on July 1 but were denied. Carol Schall and Mary Townley, who have lived in Virginia since 1982, were married in California in 2008 and want their marriage to be recognized by the commonwealth.
In response to questions about why Virginia would want to limit its recognition of marriage, attorneys defending the law said voters spoke on the matter in 2006 when they approved the state's constitutional amendment defining marriage as between one man and one woman.
"Marriage is a fundamental right, but the voters of Virginia have spoken," said David Oakley, an attorney for the appellants.
But attorneys arguing for the panel to affirm the federal court ruling said Virginia's marriage laws single out a class of Virginians and that states have never required that an ability to procreate be a precondition for marriage.
A decision on the matter is likely weeks or even months away.
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