From left: Plaintiffs Timothy Bostic, Tony London, Carol Schall, Mary Townley
Appeals Court Seems Likely to Strike Down Va. Marriage Ban

By Sunnivie Brydum

Originally published on Advocate.com May 13 2014 4:54 PM ET

The Fourth Circuit Court of Appeals looks likely to follow the precedent set by a dozen other federal and state trial courts in the past year and strike down Virginia's constitutional ban on same-sex marriage, according to those who attended today's hearing in Richmond. 

BuzzFeed legal editor Chris Geidner reports that "two of the court’s three judges appeared ready to strike down the ban Tuesday at oral arguments in Richmond — the third federal appellate hearing on the question currently winding its way through federal and state courts throughout the nation."

The hour-long hearing featured a lively back-and-forth between the three judges and the myriad attorneys representing both the same-sex couples who filed suit on behalf of a larger class of LGBT Virginians, as well as those representing a local county clerk who does not want to issue marriage licenses to same-sex couples. Some reporters inside the courtroom described the judge's questions as "combative" to opponents of equality, which was an unexpected tone in the traditionally conservative Fourth Circuit, according to David Badash at The New Civil Rights Movement 

Of course, conservative voices were not without representation at the courthouse, as the antigay National Organization for Marriage organized a rally before arguments began in which a small group of people — many of them evidently school-age children — held pink and blue signs bearing various iterations of "Children Do Best With a Mom and Dad." However, as gay reporter Scott Wooledge noted, the children didn't exactly seem thrilled to be at the demonstration.

Half your rally attendees appear to be kids dragged there against their will. #LGBT #VA @NOMupdate @briansbrown pic.twitter.com/yecP4Zudd7

— Scott Wooledge (@Clarknt67) May 13, 2014

The case, known as Bostic v. Schaefer (formerly Bostic v. Rainey), has become a class-action lawsuit filed on behalf of same-sex couples who are legally married in other jurisdictions but treated as legal strangers in Virginia, and those who wish to be married in their home state. Two same-sex couples are the named plaintiffs in the suit, representing the larger class of gay and lesbian Virginians. 

In February a federal district court ruled that Virginia's constitutional prohibition on performing or recognizing same-sex marriages violated the Equal Protection clause of the U.S. Constitution. That ruling was accompanied by a stay, and because the state's newly elected governor and attorney general, both Democrats, refused to defend the law, the antigay group Alliance Defending Freedom stepped in as intervenors and appealed the decision on behalf of a county clerk who does not want to issue marriage licenses to same-sex couples. 

Today's arguments in Richmond's federal courthouse focused heavily on questions of federalism — that is, the right of the federal government to overturn laws duly enacted by the states — with Judge Roger Gregory intensely questioning the ADF attorney who was arguing in favor of Virginia's existing law, Austin Nimocks. After a tense debate with the judge regarding the nature of "fundamental rights" and if those could logically differ for straight and gay couples, Nimocks trotted out the classic argument that bans on same-sex marriage are simply serving a legitimate state interest in protecting children and ensuring they have a mother and a father.

Geidner reports that Nimocks told the court, "I don’t think Virginia denies anything to same-sex couples that they don’t deny a single mother," prompting Judge Gregory to question the right-wing attorney's motivation. "If you’re concerned about the children, why does Virginia want to rip that away from a child" whose parents are a same-sex couple?

After another exchange about whether or not children living with their biological parents fundamentally differ from those living with adoptive parents, Gregory ultimately all but dismissed Nimock's red herring of an argument. "It’s really disingenuous, your interest in children," BuzzFeed reports the judge telling the defense attorney.

Regardless of how the Fourth Circuit rules in Bostic, most observers expect the losing party to appeal that decision all the way to the Supreme Court, though it's currently unknown which of more than 75 cases seeking marriage equality in states across the country will arrive at the Supreme Court first.