Updated: 4:15 p.m. EDT
RICHMOND, Va. — Virginia’s ban on same-sex marriage entered the U.S Court of Appeals for the Fourth Circuit on Tuesday, and judge’s questions and comments seemed to demonstrate a lean towards supporting marriage equality in the commonwealth.
The three-judge panel 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.
U.S. District Judge Arenda Wright Allen ruled in February that Virginia‘s constitutional ban on same-sex marriage and denial of recognition of such unions performed in other states, violates the U.S. Constitution’s equal protection and due process guarantees.
A decision fro the appeals court is expected in a few weeks on an issue that both sides believe ultimately will be decided by the U.S. Supreme Court.
Justice Roger L. Gregory stood out as seemingly perturbed by comments diminishing the union between couples of the same-sex.
When David Nimocks, attorney for those supporting the ban, spoke about the difference between straight and homosexual child rearing, saying biological children were best raised by different sex parents, Gregory repeatedly asked if parents of adopted children were any less important. Nimocks refused to answer repeatedly.
David B. Oakley, attorney for the Norfolk County Clerk George Schaefer who denied the marriage license to plaintiffs Timothy Bostic and Tony London, stressed the importance of precedent set in Baker v. Nelson, the 1970 case which sought to allow same-sex marriages nationwide, but was denied a hearing by the Supreme court.
Oakley said it was within the state’s power to regulate marriage, and the people of Virginia made clear their stance on the issue when they voted to enact the amendment in 2006.
The issue was left up to the voters and it was a “fundamental right,” according to Oakley, when Virginia voters chose to define marriage as between one man and one woman.
Nimocks asserted that the state’s voting population and its elected officials had the right to dictate what marriage is.
But attorneys on the side of marriage equality argued that legally adopted provisions cannot violate the U.S. Constitution.
Theodore Olson, one of the attorneys representing the plaintiffs, said Virginia’s ban singles out same-sex couples as second class citizens, and that being denied marriage keeps them from the thousands of benefits afforded to married, opposite sex couples.
“Inheritance, parental rights, insurance benefits,” he said. “All these things are withheld because of sexual orientation.”
Stuart Raphael, the Solicitor General of Virginia, spoke on behalf of Attorney General Mark Herring’s office; Herring has declined to defend the ban, and filed a brief in support of the plaintiffs.
“Virginia agrees with the plaintiffs [in ending the ban]” said Raphael, adding that the ban was unconstitutional under the 14th amendment, which promises equal protection under the law.
While Herring said in a post-hearing press conference that it’s never a good idea to take comments or questions from a judge as a sign of how they will rule, he said remarks by Justice Gregory were noticeably targeted at those who supported the ban.
Gregory said prisoners can be married, but someones sexual orientation can stop them from receiving the same privilege.
Gregory also seemed to mock the theory that marriage exists as a means for procreation. “People are baby-makers?” he asked, before calling the theory “totalitarian.” Procreation is not in the constitution, he said.
Finally, Gregory asked defendants inquired as to the number of children waiting to be adopted, and asked it was fair to deny same-sex parents the chance to take them in to a family.
“Why does Virginia want to rip that away?” he asked.
A verdict in Tuesday’s hearing is expected in the next few weeks, but, as Justice Niemeyer joked in the court room, the hearing was a “way station up Route 95,” indicating the case is eventually going to be decided by the U.S. Supreme Court.
Audio of Tuesday’s hearing is here: