Ari Ezra Waldman | Gay Marriage | Law - Gay, LGBT | Virginia

Marriage in Virginia: What Happened at the Fourth Circuit?



Yesterday, a sharply divided three-judge panel of the Fourth Circuit Court of Appeals in Richmond, Virginia heard oral argument in the case of Bostic v. Schaefer (formerly, Bostic v. Rainey), an appeal of a lower court decision overturning Virginia's restrictive ban on same-sex marriage. The argument was heated, with two judges staking out positions on opposite sides of the ban and a third judge remaining more circumspect, but still indicating his skepticism of the ban.

This morning, I reviewed the audio of the oral argument. I was struck by a few things:

NiemeyerFirst, Judge Paul Niemeyer (right), the most conservative judge on the panel, sounded more rabidly anti-gay or homophobic than a rational opponent of recognition same-sex marriages. The arguments he put forth were outdated and disrespectful.

Second, the other two judges on the panel -- Judges Roger Gregory and Henry Floyd -- appeared much more willing to affirm the lower court's decision striking down the marriage ban. Their questioning suggested that they were persuaded that the Supreme Court's gay rights cases (Romer v. Evans, Lawrence v. Texas, and, of course, United States v. Windsor) almost required them to strike down the ban.

Finally, Judge Niemeyer seemed resigned to the fact that the case was on its way to the Supreme Court with just a short layover in Richmond. That, of course, is the whole point.

Follow me AFTER THE JUMP for a brief review of the argument....

(Coming up later, a review of last night's marriage equality ruling in Idaho!)

Judge Niemeyer, a Reagan-appointee to the district court in 1988 and then a George H.W. Bush appointee to the appellate court in 1990, is among the more conservative judges on the court. The main thrust of his questioning yesterday was that the plaintiffs, same-sex couples in Virginia, were seeking recognition of a "new right," a right to "get gay married." To Judge Niemeyer, there is no right to "get gay married" in the Constitution and any time the Supreme Court has spoken about the fundamental nature of the marriage right, it was in reference to opposite-sex marriages.

VirginiaIf you listen to the audio, you get a taste of two different emotions in Judge Niemeyer's words: spitefulness and resignation. He simply does not see gay relationships on an equal footing to heterosexual relationships. That is obvious from his comments about the plaintiffs' relationships being "different" and "new" and his choice to designate them as "B relationships."

Judge Niemeyer's attempt to "other" or out-group gay people is not new. In fact, it is one of the oldest tricks conservatives have used against us. We were "other"-ed when Anita Bryant asked Florida voters to keep children away from gay people. We were "other"-ed when states criminalized sodomy. We are "other"-ed all the time when animus toward us is based on difference, ignorance, and stereotyping.

What is remarkable about Judge Niemeyer's argument is that it is at once a legal argument -- if you are trying to create a technically new right, you cannot rely on statements from previous cases -- and a devastating swipe at the dignity of gay persons. It is a homophobic and hateful argument and taps into conservatives' deepest unease about gay people. And here it was on display at a federal appellate court, previewing arguments we have seen and can expect to see again from jurists like Antonin Scalia.

The other two judges on the Fourth Circuit panel seemed to recognize Judge Niemeyer's spiteful rhetoric and decided to talk passed him.

This opened the door for the best line of the day.

GregoryJudge Roger Gregory, an original Clinton nominee who was installed temporarily as a recess appointment after the 2000 election and then renominated by President George W. Bush, was more than skeptical of arguments posed by Austin Nimocks, the lawyer supporting the ban from the right wing Alliance Defending Freedom. Mr. Nimocks talked a lot about children and how the ban on same-sex marriage ensured that children would not be deprived of a household with a mom and a dad. That position, which presumes that one mom and one dad are somehow the best arrangement from raising children (it is not!), has been laughed out of court in California and, more recently, in Michigan.

Judge Gregory then asked, "If you’re concerned about the children, why does Virginia want to rip that (a loving household) away from a child” just because the parents are of the same-sex. When Mr. Nimocks replied that both a mom and a dad are needed, Judge Gregory was having none of it and he called Mr. Nimocks out on his true motive: “It’s really disingenuous, your interest in children.”

FloydJudge Floyd, an Obama appointee to the appellate court but a George W. Bush appointee to the district court, asked fewer questions, but seemed moved by the Supreme Court's pro-equality line of cases. To him, Justice Kennedy had made both Judge Niemeyer's and Mr. Nimocks's arguments almost entirely inapplicable. The question was about equal dignity, not about a mom and a dad.

In the end, the panel seems likely to affirm the lower court ruling striking down the Virginia gay marriage ban. And although there is no deadline for a decision, the fully-staffed Fourth Circuit has recently improved its opinion release rate. I would expect a decision by the end of the summer.


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Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.

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  1. If you want to listen to the banter between Judge Roger Gregory Austin Nimocks, the lawyer supporting the ban from the Alliance Defending Freedom, start at 1:03:50. Judge Gregory starts speaking at 1:04:50. I'd recommend it.

    Posted by: Joe | May 14, 2014 12:22:32 PM

  2. Arguments against gay marriages do not pass the rational test--ergo, must be struck down. Just that simple. My question though is that, as the institution becomes more redefined and updated what becomes of other forms of marriages like polygamy/polyandry ? What is the rational basis against them ?

    Posted by: parker | May 14, 2014 12:26:54 PM

  3. While these guys are busy clowning around I'm taking off for Provincetown.
    F*ck 'em.

    Posted by: lu | May 14, 2014 12:27:59 PM

  4. I beg to differ with one comment you made, Mr. Waldman. That is there is NOTHING "remarkable" about Judge Niemeyer's "argument". And, it certainly is not a "legal argument"! It is a blatant display of the most vile of homophobic bigotry and has no any basis in any legality whatsoever.

    Posted by: jamal49 | May 14, 2014 12:44:44 PM

  5. We should be nearing a point where stays that prevent same sex marriages from occuring are no longer issued. The side that opposes SSM is not harmed by SSM (though they may have their egos bruised) but there are same sex couples that will be hurt by not being able to marry (any couple with health issues).

    Posted by: bkmn | May 14, 2014 1:09:13 PM

  6. If all of the Appellate courts strike down the various state's bans on marriage equality, is the Supreme Court even required to take any of the cases?

    Posted by: Phoenix Justice | May 14, 2014 1:18:06 PM

  7. @PARKER: The rational argument against plural marriage is that it creates relationships between people who might not wish to be in those relationships. If A marries B and then marries C, what's the legal status between B and C? What if A, B and C all choose to marry each other then A and C decide they want to divorce but remain married to B? There are personal and property entanglements in plural marriages that our current legal system is not equipped to handle. If the system can be updated so that all parties would enjoy equal rights and protections, then there would be no more rational basis for banning plural marriage than there is for banning same-sex ones.

    Posted by: FakeName | May 14, 2014 1:24:03 PM

  8. @ PARKER
    That was tried in Canada in Bountiful, BC, the home of a radical polygamous Mormon sect. The patriarch had multiple wives and arranged marriages of teen girls to himself: imagine a gorgeous Ricky Mountain version of Craster's Keep.

    The judge ruled that the practics of multiple wives, at least in this case, was both abusive to women, and trafficking in women and children. Unlike same-sex marriage, this trype of plygamous practise is NOT based on two consenting adults, but an abusive power imbalance.

    Posted by: Strepsii | May 14, 2014 1:27:08 PM

  9. @Pheonix Justice, you are correct. If all federal appellate courts strike down gay marriage bans, there is no split in authority among the federal circuits for them to resolve.

    As an aside, I knew Judge Floyd when he was a state circuit judge here in SC. My sense is that he is predisposed to strike down the ban. Either way, though, you can be sure that the losing side will file a petition for an en banc rehearing of the issue, which would involve the entire Fourth Circuit Court of Appeals rehearing the case.

    Posted by: Calen in SC | May 14, 2014 1:41:10 PM

  10. I listened to the full audio, and I would like to ask the author of this article: Specifically what did Judge Floyd say (and when) that leads you to believe he is inclined to reject the marriage ban? I want to be optimistic, but his remarks seemed fairly banal and unrevealing.

    And yes, there is a good chance that the 3-judge panel's ruling (pro or con) will be subject to a petition for rehearing by the full 4th Circuit. Such a petition could be denied in a matter of days or weeks, or if granted it could prolong the case for many months.

    Posted by: MiddleoftheRoader | May 14, 2014 2:02:12 PM

  11. How can Ari Waldman actually teach law students how to write? He can't write effectively himself. This lengthy piece is devoted primarily to denouncing the malice and prejudice displayed by Judge Niemeyer at the oral argument. But in the entire piece, Ari doesn't quote a single complete sentence from the judge so we can see wtf Ari is talking about.

    It may be that Niemeyer is malicious and prejudiced, but you can't tell that from Ari's latest shallow, dumb post.

    Ari, stick to what you do best: defending Dharun Ravi.

    Posted by: ArisNonExistentWritingSkills | May 14, 2014 3:40:05 PM

  12. Justice Niemeyer is a homophobic bigot and his "argument" was grotesquely insulting and dehumanizing to gay people. I liked when Ted Olson closed his "it's not equal, it cannot be equal..." rant with a simple "it is equal!".

    Posted by: TheSeer | May 14, 2014 4:01:24 PM

  13. And the strongest rational argument against polygamy is that there are (approx.) equal number of men and women in every community. When a man takes 10 wives, that means that 9 boys in that community will not be able to find a single wife for themselves. How is that going to increase their dignity and their integrity? How can a society that says such a practice is OK be human and civilized.

    There is no similarity between gay marriage and polygamy at all. Gay marriage is about social autonomy of gay people, about their dignity and their integrity. Polygamy is the total opposite. It is about power, subjugation and overpopulation. Polygamy is a barbaric Biblical institution, while gay marriage is neither barbaric nor Biblical. By saying that gay marriage is not ok, you are saying that gay people are not ok. And by saying that polygamy is not ok, you're saying that all those atrocities happening in Colorado City, Hildale, Centennial Park etc are not ok. Opposing gay marriage makes one an enemy of human decency. And supporting polygamy makes one the same.

    Posted by: TheSeer | May 14, 2014 4:15:06 PM

  14. Ari, as a lawyer I want to thank you (and Towleroad) for your continued superb legal analysis of these critical cases. Your analysis is always excellent, on point, and provides the right amount of detail for lawyers and non-lawyers alike. Please keep it up! Towleroad is the best place on the web for legal analysis on the key mariage equalty cases. Thank you!

    Posted by: Chris Dolan | May 14, 2014 7:02:32 PM

  15. On the subject of Ted Olson, I think you'll all like today's What If post at XKCD.

    Posted by: Randy | May 14, 2014 11:40:42 PM

  16. Theseer, your argument against polygamy fails.

    I know it's trendy to attack other people to prove that we're not as "bad" as they are, but they actually do have due process rights too, and their claims are similar to ours, in that respect. I will not throw them under the bus to save myself.

    First, polygamy exists, regardless of polygamous marriage, and regardless of legal recognition of such marriage.

    Second, marriage is a fundamental individual right.

    Third, the right to a second monogamous marriage requires recognizing the right to divorce (Boddie v. Connecticut).

    Taken together, there is a broad fundamental right to choose (or un-choose) your closest family members, without the government blocking the way.

    Instead of divorcing to remarry, some people want to marry that second person AND stay married to the first (and the first agrees with this decision... indeed the first may also want to marry this second person at the same time, especially in a single-sex family). On what basis does the government step in to force the original couple apart, and stop the three from forming a family together?

    What you call polygamy is not, in fact, polygamy. It is religion-induced oppression, and its effects are exaggerated because their unpopularity has forced them to live in isolation. Once religion is stripped of its immunity, and is treated like any other set of claims and practices, problems like these can be dealt with via law enforcement. And, even if some people are left single, that should not then require or permit the government to step in and find them mates by denying other people their right to marry who they choose. The right to marry does not turn into a right to force someone to marry you.

    Polygamous couples may involve the model you mention (one man married to multiple women), but may also involve other models which have appeared here (three women all married to each other) or elsewhere (a woman married to multiple men, or two gay men and two lesbians raising their genetic children).

    Polygamy isn't going to be legalized in my lifetime. It's something people bring up to scare people about marriage equality, because if gay people aren't disgusting enough, just look at the polygamists, right? And while the courts can (and should) strike down the monogamous restriction of marriage, it will take legislatures to rewrite the many laws to be applicable to marriages involving more than two people.

    Posted by: Randy | May 15, 2014 12:20:59 AM

  17. *Polygamous families, not polygamous couples. Oops!

    Posted by: Randy | May 15, 2014 12:31:01 AM

  18. If same-sex "marriage" is a fundamental right, then so is incestuous marriage. I'm not ready to rank polygamous marriage up there (because it is a fundamentally different relationship than a 2-person quid pro quo partnership), but neither can I think of a good policy rationale against it that isn't at its core either "ew, polygamy" or "that one guy abused his wives or married a pre-teen, so all polygamists do that".

    Face it, gays. You want marriage? You're gonna have to hold the door open for those coming in behind you.

    Posted by: TKinSC | May 15, 2014 9:17:46 AM

  19. As far as the judges go, Judge Niemeyer was hardly homophobic. In fact he suggested that it might be a good idea to recognize and dignify same-sex relationships. But he stressed the obvious point that such relationships are not covered by the term "marriage", and that in any case such policy debates are properly left for the people of the States to resolve. He will vote to uphold the ban, but he is hardly a bigot.

    Judge Gregory spewed hateful vitriol throughout, at one point specifically mocking one of the lawyers for the ban with an offensive comparison to Loving: "How many years do same-sex couples have to leave the state before they can come back?" (Needless to say, same-sex couples are free to live their lives in Virginia as in all states, and need not fear prosecution for their relationships.)

    Judge Floyd was reserved. It's hard to say what he will do, but I'd be willing to bet that, all else being equal, reserved judges are more likely than not to exercise judicial restraint and uphold a state law against a constitutional attack (for the quintessential example of this, see Clarence Thomas). Therefore, my hunch is he will vote to uphold the ban, but that hunch is by no means strong.

    One note about Ted Olson: He is a worth every penny. It was surreal to hear his famous booming voice in the midst of the average, nondescript voices of the others. If his side wins, it will no doubt be because he resonated with Judge Floyd. (But my hunch remains that Olson's side will lose.)

    Posted by: TKinSC | May 15, 2014 9:41:20 AM

  20. @TKinSC:
    Polygamists are NOT (I repeat: NOT) seeking, nor is it even logically possible for them to seek, the same changes that same-sex couples need (which is only an end to gender discrimination under the law).
    Polygamists want to be DE-CRIMINALIZED for having their multiple religious marriages. They know it is not even a functionable idea for any number of wives to be treated as the spouse by the government when it comes to every issue thst is related to civil marriage, such as survivors' benefit payments or being the decision-maker on a spouse's behalf when he is unable to be his own.

    And while it istrue since Lawrence v Texas (in 2003) that it is LESS likely that gay Virginians such as Sharon Bottoms will again have their families torn apart by the state, it is still a reality that being treated as inferiors by the state makes gay Virginians and their families' quality of life suffer.
    Gay individuals and their families may very well feel forced (not by an authority coming to their house and pushing them out, but but by difficult circumstances caused by anti-gay laws and attitudes) to relocate in order to live with a safe and high-quality life.
    Personally, I would not feel safe and secure raising a family in Virginia under present circumstances.

    Posted by: GregV | May 15, 2014 11:06:08 AM

  21. So this IS the argument where David Oakley justified denying Marriage Equality based on the fact that Pocahontas was allowed to marry John Rolfe, and no court ruled their marriage unconstitutional (@13:48).

    Think for about a milisecond, and then reference David Cohen's piece in Slate about why that is the all-time worst argument against Marriage Equality to date.

    Less ridiculously, but still comic, was Mr. Oakley's (mis)pronunciation of anti-miscegenation as "anti-massageination". Why do I get the feeling that interracial marriages probably rub Oakley the wrong way too?

    Posted by: Hall of Shame Lawyering | May 17, 2014 2:06:23 PM

  22. What amazed me about his dissent was that if it had been the majority decision, it would have set up a situation in which a member of the military could be married if stationed in Iowa but would not be married if his/her duty station was changed to Texas but would then be married if their duty station were then changed to Washington. A same sex couple with their children could leave California traveling on a vacation and be married, but the minute they got to Arizona they would not be married until they got to New Mexico where they would again be married and then when they crossed into Texas they would not be married again until they got to Washington, D.C. On their return trip, they would be unmarried until they got to Chicago and on into Iowa and then once again unmarried until they returned to California. What a mess the judge sees as a "blessing of federalism".

    Posted by: *****overTX | Jul 28, 2014 7:32:38 PM

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