The three-judge panel of the 4th U.S. Circuit Court of Appeals hinted at varying stances as they grilled attorneys for four couples challenging the state's same-sex marriage prohibition and lawyers for two circuit court clerks defending it. A decision is expected in a few weeks on an issue that both sides believe ultimately will be decided by the U.S. Supreme Court.
U.S. District Judge Arenda Wright Allen ruled in February that Virginia's constitutional amendment and laws barring gay marriage and denying recognition of such unions performed in other states violate the U.S. Constitution's equal protection and due process guarantees.
On Tuesday, 4th Circuit Judge Roger Gregory vigorously challenged lawyers defending the ban on their assertion that the state has a right to limit marriage to people who can procreate. Same-sex couples can have children too, Gregory said.
"Not the same way," said Austin Nimocks, attorney for one of the clerks.
Gregory shot back: "As long as they get to have families, what difference does it make?"
Circuit Judge Paul V. Niemeyer, however, described marriage as a fundamental right that historically has focused on preserving stable families.
"It seems to me a state might be able to latch onto that and say we want to continue that," Niemeyer said.
Judge Henry F. Floyd asked fewer questions than his colleagues, but did inquire why Virginia would want to deny recognition of same-sex marriages in other states. Nimocks said requiring such recognition would amount to "an end run" around the public policy behind the ban.
Virginia voters in 2006 voted 57 percent to 43 percent to approve the constitutional amendment banning gay marriage.
"Marriage is a fundamental right, but Virginia voters have spoken. They've decided not to extend that right to same-sex couples," said David B. Oakley, attorney for the other clerk.
Attorneys for the same-sex couples argued that legally adopted provisions still must fall if they violate the U.S. Constitution.
"Virginia's marriage laws single out for discrimination a class of Virginians based on the sexual orientation and gender of the person they love," said Theodore Olson, attorney for two of the couples.
Attorneys for the two sides also disagreed on whether the landmark U.S. Supreme Court decision in Loving v. Virginia, which struck down interracial marriage bans in 1967, provided the basis for also invalidating prohibitions on same-sex marriage. Allen relied heavily on that case in her ruling.
Outside the courthouse, supporters of the gay marriage ban outnumbered opponents by a wide margin. They carried signs saying "Every Child Deserves a Mom & a Dad" and chanted "one woman, one man."
"We're here to support the traditional definition of marriage, not to alienate or dis the other side," said Bill Heipp of Midlothian, a Family Foundation of Virginia volunteer.
Supporters of the gay couples chanted "marriage equality now" and cheered when the couples left the courthouse hand-in-hand.
John Pagan, a University of Richmond law professor whose specialties include the law and sexuality, attended the 70-minute hearing and said he was impressed with the exchanges between the court and the attorneys and with the atmosphere.
"We all recognized we were witnessing a historic moment," he said.
Pagan said he was struck by Gregory's questions focusing on the welfare of children of gay couples.
"It was a brilliant examination of the issue at the heart of the case," he said.
One of those children, 16-year-old Emily Schall-Townley, said at a news conference after the hearing: "It's really not that complicated. I have been and continue to be raised in a loving, nurturing and supportive family."
Emily's mothers, Carol Schall and Mary Townley, joined Timothy Bostic and Tony London of Norfolk in challenging the gay marriage ban. Two other same-sex couples, Joanne Harris and Jessica Duff of Staunton and Christy Berghoff and Victoria Kidd of Winchester, filed a similar lawsuit in Harrisonburg and were allowed to intervene in the case before the appeals court.
Virginia Attorney General Mark Herring is supporting the plaintiffs, and his solicitor general on Tuesday urged the court to uphold Allen's ruling.
A decision overturning Virginia's ban could also affect similar prohibitions in West Virginia, North Carolina and South Carolina, which also are in the 4th Circuit. Maryland, also in the circuit, is one of 17 states that allow gay marriage.