Marriage and the Race to the Supreme Court: What to Look for at the Fourth Circuit

by Robert Destro

Now that we know which horse took home the roses at the Kentucky Derby (California Chrome), it’s time to consider the odds on another race — this one a relay that began in May, 1970,when two male students at the University of Minnesota applied for (and were, predictably, denied) a marriage license: Which state marriage law challenge will be first past the post in the U.S. Supreme Court?

For advocates of same-sex (or “genderless”) marriage, the prize in this race is a Supreme Court majority opinion that invalidates all state laws that define marriage as the union of one man and one woman.  The U.S. Supreme Court refused to take that step in United States v. Windsor, but many interpret it as hinting strongly that both Congress and the states must grant legal recognition to same-sex marriages, and that that anyone who refuses to do likewise is a bigot.  Windsor was thus the opening shot in what most legal commentators agree will be the last two legs of the race.

Over 60 challenges to state marriage laws have been filed in state and federal courts since Windsor was decided in June, 2013. Taking their cue from Justice Kennedy’s opinion in that case, the lower courts have uniformly held that laws defining marriage as a union of one man and one woman are unconstitutional.  The action (and drama) now shifts to the federal circuit courts.  An appeal from one or more of the cases currently pending will inevitably put the marriage question front-and-center on the U.S. Supreme Court’s docket in the 2014-2015 Term.  Which case will it pick?

To date, the Tenth Circuit has heard oral arguments in challenges to Utah’s and Oklahoma’s marriage amendments, but has yet to issue an opinion.  While we wait for those opinions, all eyes now turn to the Richmond-based Fourth Circuit, which will hear oral arguments today in Bostic v. Rainey, a challenge to Virginia’s marriage laws.  

Bostic is a “case-to-watch” for several reasons.

Virginia’s marriage laws defining marriage as the union of one man and one woman have been on the books since 1632.

The nature and scope of the fundamental right to marry is at issue.  While Loving v. Virginia and multiple other Supreme Court decisions have affirmed the fundamental right to marry, it has always been assumed that the relationship involved would be male-female.  Advocates of same-sex marriage are attempting to expand the scope of this fundamental right to marry to include same-sex couples (“non-gendered” relationships) relying on this precedent, so it will be interesting to see how judges address this issue.

In the Tenth Circuit, the litigants knew who the panel members would be prior to the day of argument.  In Bostic, the litigants will not learn the members of the Fourth Circuit panel until the morning of oral arguments.  

Good lawyers know that the make-up of the court will play a big role in the oral arguments and in the majority’s reasoning once the case is decided.

So, what do we know about the judges on the Fourth Circuit? Sixteen judges sit on the Fourth Circuit: Six were appointed by President Obama, four by President Clinton, one by President Reagan, and five by Presidents George H.W. Bush and George W. Bush.

Though oral arguments are rarely the occasion for placing bets, they do provide excellent scouting opportunities.  A judge’s questions provide valuable insights on his or her approach to the issues in the case, so pay particular attention to which judges are on the panel, to the questions they ask, and to their reactions to the advocates’ answers.  

We will want to know, in particular, whether they accept the lower court’s premise that ”love and commitment to one another” is the only constitutionally-acceptable definition of a marriage.  We will also want to know whether the panel judges appear to agree that Virginia’s understanding of marriage as a relationship between one man and one woman is, like race discrimination, a ”law . . . rooted in unlawful prejudice.”

For answers to these questions and more, stay tuned. The audio recording of the oral argument will be available on the Fourth Circuit’s website on Thursday, May 15.

— Robert A. Destro is professor of law and founding director of the Interdisciplinary Program in Law & Religion at The Catholic University of America’s Columbus School of Law in Washington, D.C.


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