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Marriage in Virginia: What Happened at the Fourth Circuit?

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By ARI EZRA WALDMAN

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 The arguments he put forth were outdated and disrespectful.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

Continue reading "Marriage in Virginia: What Happened at the Fourth Circuit?" »


Wednesday Speed Read: Virginia, Idaho, Equality Act of '74, Matt Foreman, ENDA, Alaska

BY LISA KEEN / Keen News Service

NiemeyerFOURTH CIRCUIT SLUGFEST:

Oral arguments Tuesday before the Fourth Circuit U.S. Court of Appeals over Virginia’s ban on same-sex marriage suggest the vote will almost certainly be 2 to 1 vote. The only question is which way it will go. Sharp comments and fierce questioning by two of the three judges left little room for doubt on how their votes will split. Republican appointee Paul Niemeyer, 73, said allowing gays to marry could set the stage for a man to marry “six wives or his daughter.” He suggested same-sex couples could have a “parallel” type relationship “with less attributes.” Democratic appointee Judge Roger Gregory, 62, derided arguments by attorneys who said marriage laws are for heterosexual couples to “protect the children.” Gregory said that sounded like a “totalitarian system where people are baby makers and you get married for the interest of the state.” Full story tomorrow.

DaleTHE ‘SLOW’ MARCH IN IDAHO:

Just eight days after hearing arguments, a U.S. magistrate judge on Tuesday struck down Idaho’s ban on same-sex marriage and ordered the state begin issuing licenses Friday. Chief U.S. Magistrate Judge Candy Dale’s 57-page memorandum order in Latta v. Otter, a case brought by the National Center for Lesbian Rights, says the ban on same-sex couple marrying violates the U.S. Constitution’s guarantees to equal protection and due process.  “Slow as the march toward equality may seem, it is never in vain,” wrote Dale, who said the state offered “no evidence that same-sex marriage would adversely affect opposite-sex marriages or the well-being of children.” The ruling made Idaho the 11th state this year to see its ban on same-sex marriage struck down. All are under appeal. In anticipation of Dale’s decision, Idaho’s Republican Governor Butch Otter filed a motion requesting a stay pending appeal.

SPEAKING OF THE ‘SLOW’ MARCH:

It was 40 years ago today that U.S. Reps. Bella Abzug and Ed Koch (D-NY) introduced the “Equality Act of 1974,” the first version of what is now the Employment Non-Discrimination Act (ENDA). The Equality Act was a much broader piece of legislation, seeking to prohibit discrimination based on sexual orientation in employment, housing, and public accommodations. Over the years, the bill was trimmed and rewritten. Today’s version seeks to prohibit discrimination based on sexual orientation and gender identity but only in employment with businesses of 15 employees or more and with exemptions for religious organizations. The bill passed the Senate last November for the first time in its 40-year history; but House Speaker John Boehner (R-Ohio) has vowed it will not get a vote in the House under his leadership.

ForemanPULL THE PLUG ON ENDA?

Former National Gay and Lesbian Task Force Executive Director Matt Foreman urged LGBT leaders to “pull the plug” on the Employment Non-Discrimination Act (ENDA), saying it is an “essentially lifeless corpse.”

COUPLES SUE IN ALASKA:

Five same-sex couples filed suit in federal court Monday to challenge Alaska’s ban on same-sex marriage. That now leaves only three states with bans that have not yet been challenged in court: North Dakota, South Dakota, and Montana.

LAMBDA AT ALASKA SUPREME COURT:

Lambda Legal argued a case before the Alaska Supreme Court Tuesday that could strike down that state’s ban on same-sex marriages. In Harris v. Millennium Hotel, Lambda argued that the state law barring same-sex couples the right to marry prevented Deborah Harris from qualifying for a survivors’ benefit paid through the state’s Workers Compensation Act to spouses of employees killed at work. Harris and Kerry Fadely were in a relationship for 10 years before Fadely was shot to death at work by a recently fired employee.

© 2014 Keen News Service. All rights reserved.


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.


Virginia Gay Marriage Ban Before the Fourth Circuit Court of Appeals Today: What To Watch For

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By ARI EZRA WALDMAN

Virginia's restrictive ban on same-sex marriage was struck down by District Court Judge Arenda Wright Allen in February. Today, Judge Wright Allen's decision gets an appellate hearing at the Fourth Circuit Court of Appeals, the intermediate appellate court based in Richmond that stands between the lower court and the U.S. Supreme Court.

The case, originally captioned Bostic v. Rainey, offers the appellate court a relatively "clean" same-sex marriage challenge without many of the complications that doomed the Prop 8 case to an anticlimactic end. Virginia's ban was comprehensive, banning both in-state gay marriages and recognition of out-of-state marriages between two gay people. And there is a certain poetic symmetry to bringing a federal challenge to marriage discrimination in the same state that gave us the landmark decision of Loving v. Virginia, which ended bans on interracial marriage.

A three judge panel of both Democratic and Republican appointees will consider the ban given the Supreme Court's decision in United States v. Windsor and the decision of sister courts across the country striking down all state bans on same-sex marriages. Given that context, two things are clear: First, gay marriage opponents will be arguing against the tide, and, second, the Supreme Court's decision in Windsor will be the primary reason why this court is likely to affirm the unconstitutionality of the ban.

I provide a brief preview of the major players and the arguments to come this morning,
AFTER THE JUMP...

Continue reading "Virginia Gay Marriage Ban Before the Fourth Circuit Court of Appeals Today: What To Watch For" »


Tuesday Speed Read: Virginia, Keith Crisco, Clay Aiken, Mike Huckabee, Trans Military, Sam Kiss,

BY LISA KEEN / Keen News Service

BosticAT THE FOURTH CIRCUIT THIS MORNING:

One of the fastest moving cases among the 60 or so lawsuits challenging state bans on same-sex couples marrying is the Bostic v. Schaefer case from Virginia. This morning, that case will be argued before a panel of one of the nation’s most conservative federal appeals courts, the Fourth Circuit U.S. Court of Appeals, in Richmond, Virginia. The identity of the three-judge panel is to be released this morning. The argument begins at 9:30 and Equality Virginia says it expects to have more than 100 people at a rally outside. The Fourth Circuit says an audio recording of proceedings will be available on its website by 2 this afternoon.

CriscoCLAY AIKEN CHALLENGER DIES:

Businessman Keith Crisco, who was fewer than 400 votes behind openly gay candidate Clay Aiken in the Democratic primary race for North Carolina’s Second Congressional District, died Monday. The News and Observer reported the Crisco family as saying the 71-year-old succumbed from injuries he sustained in a fall at home around midday. He reportedly planned to concede the primary to Aiken on Tuesday. Aiken issued a statement calling Crisco “a gentleman, a good and honorable man, and an extraordinary public servant.” Aiken will now face incumbent Tea Party Republican U.S. Rep. Renee Ellmers in November.

PiazzaHUCKABEE IMPLORES IMPEACHMENT:

Former Arkansas Governor Mike Huckabee called on current Governor Mike Beebe, a Democrat who opposes same-sex marriage, to call a special session of the Arkansas legislature to impeach county circuit Judge Chris Piazza. Huckabee, according to The Hill newspaper, said Piazza usurped the authority of the legislature and the voters when he declared the state’s ban on same-sex marriage to be unconstitutional. The state attorney general filed a motion with the state supreme court Monday morning, seeking a stay of Piazza’s decision; at deadline, the state high court had yet to respond. Only five out of Arkansas’ 75 counties have issued licenses to same-sex couples.

HagelHAGEL OPEN TO DOD TRANS REVIEW:

Defense Secretary Chuck Hagel said on ABC’s This Week program Sunday that he is open to having DOD review its policy banning transgender people from the military, but that it’s a “bit more complicated” than gays because of special medical needs. He made his comment in response to a question from reporter Martha Raddatz, adding “every qualified American who wants to serve our country should have an opportunity if they fit the qualifications and can do it.”

ThekissANALYZING THE KISS:

There was a lot of air time given Monday to talk about a widely seen video of openly gay football player Michael Sam getting the news Saturday that he had just been drafted by the St. Louis Rams and was becoming the first openly gay professional football player. The video shows Sam getting off the phone in tears and turning to his boyfriend Vito Cammisano who gives him a quick kiss on the lips and then they hug for a long time as Sam is clearly overcome with emotion. After viewing the video, a Miami Dolphins player tweeted “OMG” and “Horrible;” but his team general manager quickly released a statement, saying he was “disappointed” in the post and would “handle” the matter. MSNBC political commentator Chuck Todd had this perspective: “That could be the most significant cultural moment in hindsight. We may look back on that moment being sort of THE big moment when same-sex marriage and same-sex relationships as far as pop culture was concerned went mainstream. … That was as significant as a state legalizing, as being the first state to legalize same-sex marriage.”

© 2014 Keen News Service. All rights reserved.


4th Circuit Court of Appeals to Hear Challenge to Virginia’s Ban on Same-Sex Marriage this Tuesday

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Bostic v. Rainey – the Ted Olson and David Boies-backed challenge to Virginia’s ban on same-sex marriage is set to be heard before a three-judge panel of the 4th U.S. Circuit Court of Appeals this Tuesday.  

The AP looks at what might happen in the case before the court:

HerringA three-judge panel randomly selected from the 16-member appeals court will hear arguments from lawyers for both sides. The Richmond-based 4th Circuit, once widely considered the most conservative appeals court in the country, has become more moderate with the addition of five appointees by President Barack Obama. Lawyers typically face what they call a "hot bench," which means the judges ask a lot of questions. The court usually issues its rulings several weeks, or even months, after hearing arguments.

Last month, Virginia Attorney General Mark Herring [pictured right] filed a brief supporting the plaintiffs in the case, a move that has drawn criticism from conservatives in the state. The job of defending the law during verbal arguments is now with the legal team of Norfolk’s Circuit Court clerk George E. Schaefer III – the clerk who originally denied Timothy Bostic and Tony London their marriage license.  


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