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:
First, 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 The arguments he put forth were outdated and disrespectful.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.
If 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.
Judge 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.”
Judge 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.
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.