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 The arguments he put forth were outdated and disrespectful.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!)