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Fourth Circuit Court Appears to Side with Plaintiffs at Hearing on Virginia's Gay Marriage Ban

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Some good early reports from today's Fourth Circuit hearing on Virginia's gay marriage ban, via Buzzfeed's Chris Geidner:

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.

Judge Paul Niemeyer was the only judge hearing the arguments who pressed heavily on the side of the state’s ban, saying that same-sex couples are creating a “brand new relationship” and that “it takes a male and female to have a child, to have a family.”

The “core of a family” is the mother-father relationship, Niemeyer told Ted Olson, who was arguing for same-sex couples fighting the 2006 marriage ban. Describing that relationship as “A” and same-sex couples’ relationships as “B,” Niemeyer said that “the state can redefine it and call it marriage,” but that wouldn’t change the fact that “these are two different relationships.”

Geidner adds:

The other judges mostly did not engage directly with Niemeyer’s argument, appearing prepared to continue the path laid out by the Supreme Court in its trilogy of “gay rights” cases in providing additional protections to gay, lesbian, and bisexual people and, in striking down the Defense of Marriage Act last year, same-sex couples’ relationships.

It's not clear when the court will rule.

Listen to the full audio of today's hearing HERE.

Read our earlier report on the case from Ari Ezra Waldman HERE.

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Comments

  1. That judge however would be going against the Supreme Court where Kagen pointed out quite clearly that infertile couples are still allowed to marry.

    Posted by: Cam | May 13, 2014 3:49:54 PM


  2. Same-sex relationships and marriages are hardly new, which is why the bans against them go back at least as far as the 1972 Baker case (and a historian could likely detail earlier history for us).

    I asked elsewhere, but which state was it that wrote into their statutory or constitutional ban on marriage that the ban was not at all related to procreation. I thought it was Virginia, but nobody mentioned it.

    Posted by: Randy | May 13, 2014 4:07:02 PM


  3. Has the dissenting judge ever heard of adoption? Is a family based soley on the basis of being able to procreate. Are infertile couples less than? Single parents (of which there are many) are less than? And since when does having children define the basis of being allowed into a civil marriage. Plenty of heterosexual couples have no desire to have children so are they allowed to marry simply because mostly likely they have the ability to physically conceive a child? I think not. This judge is grasping at straws. I predict good news for gays in VA is coming shortly. :o)

    Posted by: SpaceCadet | May 13, 2014 5:12:44 PM


  4. Has the dissenting judge ever heard of adoption? Is a family based soley on the basis of being able to procreate. Are infertile couples less than? Single parents (of which there are many) are less than? And since when does having children define the basis of being allowed into a civil marriage. Plenty of heterosexual couples have no desire to have children so are they allowed to marry simply because mostly likely they have the ability to physically conceive a child? I think not. This judge is grasping at straws. I predict good news for gays in VA is coming shortly. :o)

    Posted by: SpaceCadet | May 13, 2014 5:12:44 PM


  5. Has the dissenting judge ever heard of adoption? Is a family based soley on the basis of being able to procreate. Are infertile couples less than? Single parents (of which there are many) are less than? And since when does having children define the basis of being allowed into a civil marriage. Plenty of heterosexual couples have no desire to have children so are they allowed to marry simply because mostly likely they have the ability to physically conceive a child? I think not. This judge is grasping at straws. I predict good news for gays in VA is coming shortly. :o)

    Posted by: SpaceCadet | May 13, 2014 5:12:44 PM


  6. I am sick and tired of hearing that gay couples cannot have children. Of course they can. She sounds like a complete dumbass!

    Posted by: RK | May 13, 2014 5:43:21 PM


  7. Marriage is about love and commitment, no where in any wedding vow does it mention procreation.

    Posted by: michael | May 13, 2014 5:57:40 PM


  8. For those who have the patience, I would suggest listening to the audio of the court argument.

    It's clear that Judge Gregory will strike down the marriage ban. It's almost as clear that Judge Niemeyer will approve the ban, in light of his questions and comments that reflect a bigoted, "Leave It to Beaver" view of what is a "family" and what is a "marriage". But when the article on Towleroad says that 2 of the 3 judges seem likely to strike down the ban, it is obviously counting Judge Floyd as siding with Judge Gregory. And based on the few questions and comments from Judge Floyd, it's not reasonable to say that he would strike down the ban -- his view is big question mark.

    The best result of course is that the 4th Circuit says that a ban on same-sex marriage is unconstitutional. And we hope the Supreme Court would also say that.

    But it's interesting to think of a fall-back argument. In other words, what if the court says that it really doesn't have to decide if a ban on same-sex marriage violates the US Constitution -- because the ban in Virginia is far worse that banning same-sex couples from only marriage. It ban them from any kind of similar legal protection.

    Unfortunately, the lawyers really didn't spend much time arguing that the Virginia ban is among the worst in the country -- because it not only prohibits same-sex marriage, but it prohibits the state from recognizing ANY "legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage" and also from recognizing "another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage." In other words, the court should throw out the entire Virginia ban because it not only prohibits "marriage", but it demeans gay people even more by denying their relationships ANY "legal status" that have the "qualities" or "significance" or "effects" of marriage!

    So, in legal terminology, the entire Virginia ban is so "overbroad" that it must be thrown out because it denies much more than marriage. There are 19 states (including Virginia) that ban same-sex marriage and anything like it, and it would be great to have these bans thrown out in all of them.

    Okay, it's true that throwing out a ban on same-sex marriage and any legal relationship similar to it would still leave the question: could a state just ban same-sex marriage, as long as it allows same-sex couples some similar alternative? But if the court throws out the Virginia ban (similar broad bans in Utah, Oklahoma, Arkansas, Texas, Michigan) because they SO OUT-OF-BOUNDS, it doesn't mean that the court is saying that states can ban same-sex marriage as long as they allow some alternatives; it only means that the court isn't answering that question of marriage-only ban until it deals with a case where the ban is on marriage-only, and not a ban on any kind of legal relationship.

    Just something to think about.

    Posted by: MiddleoftheRoader | May 13, 2014 6:20:52 PM


  9. Obviously Niemeyer didn't read Justice Kennedy's (majority) position in the DOMA case, wherein he pointedly stressed how injurious such laws are to the CHILDREN of same-sex couples.

    Posted by: Retro | May 13, 2014 6:26:30 PM


  10. RETRO - you are exactly right.

    Also, at the very end of the argument, a lawyer for an anti-gay group continued to argue that the ban is needed to protect families and give children the security of their parents. Judge Gregory asked the lawyer "in same-sex couples, don't the children need the same security of their parents?". The lawyer answered that same-sex couples are "different" because at least one of them is not the "natural" parent. At that point, Judge Gregory asked "What about adopted children? Are they entitled to less security than the children of 'natural' parents?" And the lawyer then fell all over himself, saying that "adopted" children are in a somewhat different situation than 'natural' children. So Judge Gregory kept pushing "Where do the children of same-sex parents fit in?". (These aren't exact quotes, but you get the idea). The whole debate, starting at about 1 hour into the argument, is worth listening to. The lawyer was actually willing to "demean" the children of same-sex couples.

    Posted by: MiddleoftheRoader | May 13, 2014 9:05:43 PM


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