Though the Tenth Circuit got there first, yesterday's Fourth Circuit oral arguments in Virginia's gay marriage ban appeal were highly anticipated. The Tenth is handing appeals from Utah and Oklahoma, while the Fourth Circuit is debating Virginia's ban. If a split emerges between these circuits, or the other circuits with same-sex marriage appeals, a Supreme Court showdown could be (okay, almost certainly is) on the horizon.
How did the arguments go? If the judges' comments were any indication, the court is like the rest of this country: confused and conflicted.
5. Oral Argument Recordings Are Already Up
That's right. Read our notes for the highlights, but if you want to hear the actual arguments and judges' hemming and hawing, the Fourth Circuit has departed from its usual practice of waiting two days to post recordings of oral arguments and instead posted it yesterday afternoon.
4. Schuette Makes an Appearance
Last week, Minnesota Attorney General Bill Schuette cited his namesake, Schuette v. BAMN, the Supreme Court's recent decision on Affirmative Action bans, in a brief supporting his state's ban on gay marriage.
At around the 2:00 mark, an attorney arguing in favor of the ban brought up the same argument. It's not altogether insane -- both are voter-passed initiatives that are arguably discriminatory against a specific group. But as we noted last week, there is a distinction (and perhaps, a significant difference): the Affirmative Action ban arguably mandates equal treatment by denying any racial preferences, while gay marriage bans do the opposite -- they create a heterosexual preference and explicitly deny equal treatment.
Democracy is all well and good, until it gets blatantly discriminatory.
3. At Least One Judge Agrees: Windsor Was Far From Clear
Though the Supreme Court's partial takedown of the federal Defense of Marriage Act in Windsor has formed the basis of many recent court decisions (including extending Batson to gay jurors and the more than a dozen pro-gay marriage decisions in district courts), it's reasoning was far from clear. (Thanks, Justice Kennedy.) Most notably, the Court declined to set a standard of review, but applied some unspecified sort of heightened scrutiny.
ABC News notes that Judge Paul Niemeyer shared our confusion, stating, "I confess it's a difficult opinion to read and get exactly what is being held."
The vagueness of the opinion has worked for both sides, however, with the traditional marriage advocates arguing that the opinion mandates deference to state judgment, reports The New York Times.
2. This is Going to be Close
If their comments during oral arguments are any indication, this is going to be a very close case.
Judge Roger Gregory repeatedly seemed to side with those attacking the ban, asking the ban supporters if they agreed that marriage is a fundamental right, then suggesting that the essence of that right is choosing one's partner. He also asked about the impact on the children, asking: "Do same-sex couples have children? Do you think that child wants less of the dignity of marriage than any other child?"
Judge Niemeyer seems to be leaning the other way, repeatedly cutting off former Solicitor General Theodore Olson, who was arguing against the ban. At one point, according to the Times, he stated that traditional heterosexual marriage "is the unit that keeps society going" before sliding down the slippery slope into questions about polygamy.
The swing vote appears to be Judge Henry F. Floyd, an Obama appointee who the Times notes said little, but his few statements indicated support for overturning the state's ban. If you're curious, Judge Gregory was a recess appointment by President Bill Clinton, then was re-nominated by George W. Bush, while Niemeyer was an elder President George Bush appointee.
1. Don't Expect This to End Soon
With a deeply divided panel, and a massive constitutional quandary, expect there to be a hearty dissent, an en banc request, a possible en banc rehearing, and a petition for certiorari sent to SCOTUS.
But, if the panel decides in favor of the couples, and the decision stands, it will almost certainly mean that the entire Fourth Circuit follows. Or if this case, or a similar case in a different circuit reaches the Supreme Court, the issue could be decided even sooner.
Either way, today's arguments, while important, are but a mere second step in a long march towards resolution.
- Same-Sex Marriage: N.C. Case Held for 4th, but ACLU Argues Urgency (FindLaw's Fourth Circuit Blog)
- 2nd Va. Marriage Case Put on Hold; Bostic Briefing Begins (FindLaw's Fourth Circuit Blog)
- SSM Litigation: Carolinas and the Effect of the Virginia Opinion (FindLaw's U.S. Fourth Circuit Blog)