It's been less than a month since the Fourth Circuit heard oral arguments in Bostic, the gay marriage appeal, and the panel's decision can't come fast enough. Of course, even once that arrives, there will inevitably be an en banc petition, and then, perhaps an appeal to the Supreme Court, if one of the other circuit courts' cases doesn't arrive first.
The importance of the decision can't be understated -- the Fourth Circuit panel, and perhaps an en banc panel, will determine the fate of marriage throughout Maryland, Virginia, West Virginia, and North and South Carolina. (Indeed, the district courts in West Virginia, and in North Carolina, put those cases on hold pending the Bostic decision.)
With so much at stake, you might be curious: who's deciding the case?
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The Three Judge Panel
We touched on the panel's leanings in our coverage of the oral arguments:
- Judge Roger Gregory, a Clinton recess appointee (reappointed by G.W. Bush) seemed to support gay marriage;
- Judge Henry F. Floyd, an Obama appointee, who didn't say much, but seemed to support gay marriage;
- Judge Niemeyer, a G.H.W. Bush appointee, who cited a parade of polygamists when arguing against gay marriage.
In interesting note on Floyd, thanks to Ian Millhiser: he is an Obama appointee, but was originally put on the trial court by George W. Bush, and was recommended for the seat by two Republican senators. Nonetheless, he heard the same oral arguments we did, and thinks that the only court more likely to rule in favor of gay marriage is the very liberal Ninth Circuit.
The Full Fourth
The Fourth Circuit, as a whole, is no longer the conservative bastion it once was. The bench consists of eight judges appointed by Democratic presidents, five appointed by Republicans, and Gregory, who as we mentioned, was appointed by both. There's also a vacancy, with Obama's choice Pamela Harris waiting for confirmation.
In short, if it makes it to en banc, the panel is going to be loaded with more Democratic appointees than not. Again, it's not a perfect measure -- Gregory and Floyd seemed to have bipartisan support -- but the overall leaning of the court is clear.
- SSM Litigation: Carolinas and the Effect of the Virginia Opinion (FindLaw's U.S. Fourth Circuit Blog)
- 5 Takeaways From Virginia's Same-Sex Marriage Decision (FindLaw's U.S. Fourth Circuit Blog)
- What's at Stake in King v. Sibelius? Obamacare (Again) (FindLaw's U.S. Fourth Circuit Blog)