WASHINGTON — The overturning of Virginia’s same-sex marriage ban places the legal fight over same-sex unions increasingly in the hands of federal appeals courts shaped by President Barack Obama’s two election victories.
It’s no accident that Virginia has become a key testing ground for federal judges’ willingness to embrace same-sex marriage after last year’s strongly worded pro-gay rights ruling by the Supreme Court. Judges appointed by Democratic presidents have a 10-5 edge over Republicans on the Richmond-based 4th U.S. Circuit Court of Appeals, formerly among the nation’s most conservative appeals courts.
The San Francisco-based 9th circuit is dominated by judges appointed by Democratic presidents. The Denver-based court, home of the 10th circuit, has shifted from a Republican advantage to an even split between the parties, while the 6th circuit, based in Cincinnati, remains relatively unchanged in favor of Republicans during Obama’s tenure.
U.S. District Judge Arenda Wright Allen’s ruling Thursday, that same-sex couples in Virginia have the same constitutional right to marry as heterosexuals, represented the strongest advance in the South for advocates of gay marriage. She put her own ruling on hold while it is being appealed.
Jon Davidson of the gay rights group Lambda Legal said the “very dramatic” shift in the 4th circuit under Obama was an important reason behind the decision to sue for marriage rights in Virginia, which also twice voted for Obama.
Judges’ party affiliation is not a perfect predictor of outcomes, even on charged political issues. Republican-appointed judges in California and Kentucky have written opinions strongly in favor of same-sex marriage.
An Obama-appointed judge on the 10th circuit provided the decisive vote in a family-owned company’s religious objection challenge to covering contraception under the health care law. And most notably, Chief Justice John Roberts, a GOP appointee, joined with the court’s Democrats to uphold the health care law.
Still, one consequence of Obama’s two elections has been a change in the composition of the courts. Just over 60 percent of appellate judges were Republican appointees when Obama took office in January 2009, according to Brookings Institution scholar Russell Wheeler.
Just over five years later, Democratic appointees hold more than half the seats on appeals courts – a transformation magnified by majority Democrats who changed Senate rules last year to make it harder for the minority party to block the president’s nominees.
Legal experts on the left and right agree that who fills court seats matters. “To be fair, academic studies show that political party affiliation doesn’t affect the run-of-the-mill cases, but it does affect the cases you’re likely to write about,” said Curt Levey, who heads the conservative Committee for Justice.
Davidson, Lambda Legal’s top lawyer, said, “People frequently don’t appreciate the extent to which the president influences the composition of the courts. It is a remarkable thing about how elections have impact and this is one of the very dramatic ways you see it. There is a focus on the Supreme Court, but not on the lower courts.”
Five federal district judges have issued pro-gay marriage rulings since the Supreme Court’s decision in Windsor v. U.S. in June that struck down part of the federal anti-gay marriage law. Three of those judges are Obama appointees, one was named by Democratic President Bill Clinton and the other by Republican President George H.W. Bush.
Nancy Leong, a University of Denver law professor who is closely following the gay marriage issue at the 10th circuit, said the lineup of judges who have ruled so far conforms to general expectations.
“You don’t want to presume that just because someone was nominated by one president they’d vote a particular way, but I think in the aggregate, Republican appointees are more likely to rule against same-sex marriage,” Leong said.
But every judge who has decided a same-sex marriage case since last year’s Supreme Court ruling has come down on the side of gay marriage and has drawn heavily on the high court’s opinions.
Theodore Olson, half of the high-powered legal team representing two Virginia couples in the case decided Thursday, said he is confident about the outcome in the appeals courts “irrespective of the composition of any court. These arguments are so compelling…and the arguments presented against marriage equality are so weak.”
Defenders of the marriage ban are far from conceding that point.
“The people of Virginia understand that men and women bring distinct, irreplaceable gifts to family life, especially for children who deserve both a mom and a d ad,” said Byron Babione, a lawyer for the pro-ban group Alliance Defending Freedom. “Understanding that truth, the voters of Virginia approved a constitutional amendment to affirm marriage as the union of a man and a woman. The court’s reasoning, however, would permit nearly every relationship to be a marriage so long as it is grounded in choice and emotion, yet that’s not what marriage or true liberty has ever been.”
The issue ultimately is headed to the Supreme Court. When and from which state are not clear.
The justices are more likely to step into a case when a federal court has struck down a state constitutional provision, as has happened in Kentucky, Oklahoma, Utah and Virginia. The Kentucky case involves only the state’s recognition of legal same-sex weddings from elsewhere.
Yet, on the same day in June that the court said legally married gay couples could not be denied federal benefits, the justices declined to rule on the merits of California’s Pro position 8 that defined marriage as between a man and a woman. The effect of the decision was to allow same-sex unions to resume in California, but the high court said nothing about the right to marry.
Some justices have suggested the court should be in no hurry to do so, but the stream of lower court rulings in recent months may improve the odds of a Supreme Court decision on gay marriage in June 2015 or the year after.
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