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. It’s an argument. I am not sure how far it gets him …
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.
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 F. Floyd to assess how the tiebreaking vote will go. Floyd is generally very quiet, probing whether Windsor actually 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.
Correction, May 13, 2014: This article originally stated that Judge Paul Niemeyer observed “several times” that “every single person in this courtroom is the product of a marriage.” He said that only once. He said several times that everyone in the room is the product of a male-female relationship. (Return.)