An Appeals Court Struggles to Determine What Justice Anthony Kennedy Will Do With Same-Sex Marriage

The law, lawyers, and the court.
May 13 2014 6:34 PM

Kennedy Versus Kennedy

Same-sex marriage divides the 4th Circuit.

From left, Carol Schall, Mary Townley and their daughter Emily Schall-Townley.
From left, Carol Schall, Mary Townley, and daughter Emily Schall-Townley pose for a family portrait at their home in North Chesterfield, Virginia. Schall and Townley are part of the cases that were argued before the 4th Circuit on Tuesday in Virginia.

Photo by Timothy Wright/Washington Post

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, Virginia, where on Tuesday the U.S. 4th Circuit Court of Appeals heard arguments in another case involving a ban on marriage (this time, same-sex). As Judge Paul V. Niemeyer noted Tuesday morning, 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 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.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

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 Washington, D.C., 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 that:

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. Indeed, 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 L. 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 L. Gregory, who challenges David B. 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?”

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