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Lithwick: On gay marriage, its Kennedy vs Kennedy
First Published May 15 2014 06:00 am • Last Updated May 15 2014 06:00 am

RICHMOND, Va. • In 1967, the case of Loving v. Virginia — a constitutional challenge to Virginia’s ban on interracial marriage — was argued at the U.S. Supreme Court, just up the road from the federal courthouse here in Richmond, where on Tuesday the U.S. 4th U.S. Circuit Court of Appeals heard arguments in another case involving a ban on marriage (this time, same-sex). As Judge Paul Niemeyer noted Tuesday, this case, a challenge to the 2006 voter initiative that amended Virginia’s constitution to prohibit gay marriage, is very likely only in Richmond "as a way station to go up I-95 to Washington," where last year the high court struck down part of the Defense of Marriage Act (DOMA) but declined to clarify whether there is a fundamental right to same-sex marriage protected in the Constitution. "Maybe we should just say, ‘We pass,’ and let the case go on," Niemeyer joked.

In his 1959 decision sentencing Mildred Jeter, a black woman, and Richard Loving, a white man, the trial judge ruled that the couple, who were married in the District of Columbia but lived in Virginia, could avoid their jail sentences so long as they left Virginia and did not return for 25 years. In his decision, he wrote: "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix."

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Thankfully, American judges are not allowed to talk, or write, that way anymore, so arguments Tuesday morning in Bostic v. Schaefer (argued together with Bostic v. Rainey and Bostic v. McQuigg) do not feature judicial pronouncements about God’s plans. The three judges in the 4th Circuit here seemed more intent on divining another unknowable set of values — namely, what did Justice Anthony Kennedy intend to do in his majority opinion in U.S. v. Windsor, when the court, last June, struck down sections of DOMA that barred the federal government from recognizing same-sex marriages.

As many court-watchers have noted in the intervening year, while Kennedy’s legal reasoning may have been ambiguous in Windsor, lower courts have unfailingly taken it to mean that the Constitution’s guarantee of equal protection prohibits laws that discriminate against same-sex partners. Yes, there is important federalism language in Kennedy’s opinion, but to the extent Windsor was a kind of judicial choose-your-own-ending directive, federal judges have used it to choose that equal protection trumps same-sex marriage bans. As a result, 11 out of 11 state and federal courts have ruled for same-sex marriage since Windsor, including an Arkansas judge just last week.

In 2006 Virginia voters amended their constitution to ban not only same-sex marriage but also any recognition of same-sex marriages from other states or any legal arrangements — including civil unions — that afford marriagelike benefits. Bostic v. Schaefer is a challenge brought in the eastern district of Virginia by two men who want to marry in the commonwealth. In February, Judge Arenda Wright Allen found that Virginia’s same-sex marriage ban violates both the Equal Protection and Due Process clauses of the 14th Amendment to the U.S. Constitution. The case became yet more complicated when Virginia’s new attorney general, Mark Herring, a Democrat, announced he would not defend the ban. This leaves lawyers for two clerks who denied licenses to gay couples to defend the ban in Herring’s stead.

So now it’s up to the 4th Circuit’s three-judge panel to decide: Who would win in a bar fight? Equality Kennedy or federalism Kennedy? On your left, both physically and ideologically, representing the Kennedy who values the dignity and equality of same-sex marriages, is Judge Roger Gregory, who challenges David Oakley, the lawyer defending the Virginia ban, to explain why marriage is not an "individual right, the essence of which is the right to marry the person you choose." Gregory adds, "How can Virginia define it to a point that the fundamental essence of marriage is unrecognizable?"

At the other end of the spectrum, but occupying the middle seat at the bench, Niemeyer is channeling the states’ rights Kennedy from Winsdor, and he is ably assisted by David Austin Robert Nimocks of the Alliance Defending Freedom, which also defends the marriage ban. He explains that "the essence of Windsor is that the federal government must defer to the states." Nimocks adds that "if there was a time to say the U.S. Constitution recognizes a right to same-sex marriage," Windsor was that time. It didn’t. And since the court did not require Virginia to do what New York does, same-sex marriage is not a fundamental right.

To be sure, there is certainly some talk of protecting the children, because other than Kennedy, what is there to protect in these cases? But that doesn’t go very well for the defenders of the ban. When Oakley suggests that the government’s interest in regulating marriage stems from its interest in procreation, Gregory snaps back that this sounds a lot like a "totalitarian state," one that sees its citizens exclusively as "baby-makers" and by that rationale they should "ban 90-year-olds from marriage," too. By the end of the morning, Gregory is openly frustrated with these arguments. "It’s really disingenuous, your interest in children," he blurts out. "Are they children of a lesser God?" Oakley tries to argue that only opposite-sex couples have the capacity to make accidental babies, and that’s who the state wants to protect, but he quickly pivots to his real argument: history. There is no deeply rooted right to same-sex marriage in America. Nimocks then offers a twist on the "diversity" argument, saying that the only way to "bring diversity and the essence of both sexes to children" is to discriminate against gays and lesbians.

Ted Olson, of Bush v. Gore fame, who joined forces with David Boies, also of Bush v. Gore fame, to represent the Virginia plaintiffs, quickly runs into trouble with Niemeyer, who struggles to understand why same-sex marriage can’t be described as "Relationship B," which is a different thing from "marriage." Niemeyer is also intent on observing that "every single person in this courtroom is the product of a marriage." Which can’t be correct. Niemeyer suggests that there are all sorts of tax laws, inheritance laws and other laws to protect the institution of marriage, and he says he doesn’t think it’s useful for the state to consider "the same-sex unit" as anything but a new kind of relationship. He doesn’t accept that Loving decides this case because Loving was about racial discrimination.

Olson explains that in 14 cases the Supreme Court has recognized that the right to marry is fundamental, in order to protect rights of liberty, association, spirituality, and privacy. Niemeyer asks if the state should allow a man to marry six wives or his daughter. Olson explains that there are rational reasons to limit such unions, but that in withholding benefits from same-sex couples, the courts create a stigma for them and their children.


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James Esseks of the ACLU also argues for same-sex marriage. Niemeyer confesses to him that "Windsor is a difficult opinion to read," but that he believes the main structural thread was that DOMA involved the federal government in states’ business. Esseks replies that like DOMA, the Virginia ban precludes citizens from the many benefits of marriage and then also disallows civil unions and domestic partnerships. If marriage is as important as Niemeyer believes, Esseks wonders, why sweep some families out of it? Niemeyer ends where he started: "This is a brand-new relationship we have to look at," he says, but he won’t call that relationship marriage. Stuart Raphael, the Virginia solicitor general who was not defending the ban, closes his section of the argument by quoting John F. Kennedy when he announced the Civil Rights Act of 1963: "Sometimes you look at what you’ve done, and the only thing you ask yourself is what took you so long to do it?"

With Gregory and Niemeyer staking out pretty passionate positions, all eyes turn to Judge Henry Floyd to assess how the tiebreaking vote will go. Floyd is generally very quiet, probing whether Windsor overturned an important precedent and suggesting at one point that Windsor gave "short shrift to federalism." He asked why Virginia has an interest in nullifying marriages solemnized in other states. Regardless of how this panel decides, the full 4th Circuit can always elect to hear the appeal. But even that will probably be just another "way station" as the case ambles up the interstate and home to Anthony Kennedy.



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