Will This Gay Marriage Fight Be the One That Goes to the Supreme Court?

The case in Virginia is being hotly contested, and there’s no telling how it may go.

Will This Gay Marriage Case in Virginia Be the One That Goes to the Supreme Court?

Spencer Geiger, Carl Johansen, and Robert Robert Roman protest for equal marriage outside the Walter E. Hoffman U.S. Courthouse as oral arguments in the case of ‘Bostic v. Rainey’ proceed on Feb. 4 in Norfolk, Va. (Photo: Jay Paul/Getty Images)

Hayley Fox is a regular contributor to TakePart who has covered breaking news and the occasional animal story for public radio station KPCC in Los Angeles.

All eyes are on Virginia, where the three-judge panel of a federal appeals court heard impassioned arguments on Tuesday that challenged the state's ban on gay marriage. The judges' decision won't only affect Virginia and possibly other states in the court's jurisdiction but could take the issue of gay marriage to the Supreme Court.

The legalization of same-sex marriage has gained momentum over the last year, finding victory in unlikely places. Just last week, Arkansas became the first Southern state to legalize same-sex marriage, and beginning Friday, gay couples will be able to wed in Idaho.

"This has been an enormous run of victory particularly since the Supreme Court's decision last summer," said Suzanna Walters, author of The Tolerance Trap

She said the high court's 2013 decision to strike down a key portion of the Defense of Marriage Act opened the floodgates for states to take the issue into their own hands. So far, only 17 states have legalized same-sex marriage. But what was once a staccato process of two steps forward and one step back is now mostly just moving forward, said Walters. 

The Virginia case currently in front of the U.S. Court of Appeals for the 4th Circuit is a combination of two lawsuits, one filed in Norfolk and one filed in Harrisonburg, that was certified as a class action suit. The ACLU, along with LGBT rights group Lambda Legal and an assortment of other lawyers, now represent all same-sex couples in Virginia who either want to be married in Virginia or want their out-of-state marriage recognized in Virginia. Couples like Christy Berghoff and Victoria Kidd, who wed in Washington, D.C., two years ago but are still considered "single" in their home state. Or Joanne Harris and Jessica Duff, who've been together 11 years and are raising a young son but are unable to get married. 

"All across the country, courts are recognizing what a majority of Virginians already know—that it's unfair to exclude same-sex couples from marriage," said James Esseks, director of the ACLU's Lesbian Gay Bisexual and Transgender Project. 

Tuesday's hearing comes after a lower court ruling in Norfolk deemed Virginia's same-sex marriage ban unconstitutional. Gay couples weren't able to rush out and tie the knot, however, because the judge immediately suspended her order pending an appeal. So yesterday, in front of three judges and a national audience, lawyers on both sides of the gay marriage debate argued over the definition of marriage and the rights of the state versus the federal government.

But perhaps the most telling testimony came from the judges. Many believe U.S. Circuit Judge Henry F. Floyd will be the deciding factor in the case, as the other two expressed distinct views during the hearing.

Sparks really began to fly when the issue of children was introduced. Presiding U.S. Circuit Judge Paul V. Niemeyer said the traditional definition of marriage was a union between a husband and a wife, and it is this heterosexual relationship that results in reproduction, something same-sex couples can't do on their own. 

"It doesn't work biologically," said Niemeyer.

Opponents to gay marriage argued that procreation was a concern of the state, and that same-sex couples can't build families the way the heterosexual ones can. U.S. Circuit Judge Roger L. Gregory vehemently disagreed, saying gay couples can, and do, have children. Often those kids come from adoption, but the end result is the same. 

"After you're adopted, does it make any difference whether you're the product of a conception, biologically, of your parents, or you're adopted?" said Gregory. "What difference does it make? Children are children." 

By allowing same-sex couples to marry, Virginia could be creating more homes for foster children in need.

Although these judges seemed to wear their hearts on their sleeves, it could take up to three months for them to issue a decision. This ruling could also affect gay couples in other states under the court's jurisdiction, including West Virginia, North Carolina, and South Carolina. If the case moves on and the court rules that Virginia's ban on gay marriage is unconstitutional, there will likely be another round of appeals, and the case will head to the high court. If the Supreme Court decides not to hear the case, gay marriage will be officially legal in Virginia.  

This victory wouldn't mean the fight was over, said Claire Guthrie Gastañaga, executive director of the ACLU of Virginia.

"We in Virginia have an unfortunate history of massive resistance to federal court orders," said Gastañaga.

She referenced the landmark decision of Brown v. Board of Education in which the government ordered integration, and Virginia responded by shutting down entire schools rather than following orders. Pending a decision from the appeals court, Virginia could become the first state to legalize same-sex marriage before it even has antidiscrimination laws, said Gastañaga.

If the Virginia case doesn't make it to the Supreme Court, another one will. Marriage cases from Texas, Ohio, Nevada, and three other states are pending before federal appeals courts, and last month, the U.S. Court of Appeals for the 10th Circuit heard arguments in challenges to the Utah and Oklahoma gay marriage bans. Legal experts believe the Supreme Court could have a ruling on gay marriage as soon as the next two years.

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