Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, May 13, 2014

Some highlights from the judges' questions during Fourth Circuit oral argument in Virginia same-sex marriage case of Bostic v. Schaefer

The Fourth Circuit has posted the audio of this morning's argument in Bostic v. Schaefer. I have excerpted below some highlights from the judges' questioning that provide a sense of the dueling arguments. While the arguments of counsel are thought to be primary, it is sometimes useful to listen just to what the judges were saying. In what follows, I've tried to transcribe some of the important parts of what they said. These excerpts do not provide the full picture and should be understood in context, but they are also interesting in themselves. While I've tried to get the transcription right, I've also not had the opportunity for leisurely review. Please let me know if there are any corrections to be made.

7:55-9:40: Judge Gregory describing the essence of marriage as individual choice and autonomy. "The essence of the right to marry is an individual choice to marry the person they choose.... How do you then shift over and say ... it now becomes 'couple with someone?' It's choice, it's individual choice, it's autonomy.... How can Virginia define it to a point that it's fundamental essence is unrecognizable? .... Marriage is for the people, but the people aren't for marriage ... the whole idea is choice and people making decisions, and you say that you can define it any way the state wants to?"

10:15-12:00: Judge Gregory on procreation and totalitarianism. "Protect the children? Sounds like it's a totalitarian system where people are baby makers and you get married for the interests of the state. Do you require married people to have children? Do you ban 90 year-old couples from getting married? ... Why not? ... You say that there's no way to constitutionally put a procreation requirement on marriage; did you say that? ... So how is that a legitimate interest proffered here now?"

18:50-19:20: Judge Niemeyer on federal circuit courts as a way station. "It's probably pretty evident that you're here in Richmond as a way station up 95 to Washington. We'll probably have our say and ultimately this issue will be decided again by the Supreme Court...."

24:40-24:50: Judge Floyd on children from out-of-state same-sex marriages not recognized in Virginia. "I haven't heard either one of you talk about the California couple who were lawfully married under the California law and have come to Virginia to try to get their marriage recognized. What do you have to say about that?"

26:00-28:40: Judge Gregory on why Virginia wants to rip the benefits of marriage from children. "I thought your policy was child-centered. What about the children of those marriages that were consummated out of state and legalized and they come to Virginia. What about the children? ... Why do you want to deny them all those warm and wholesome things about marriage? ... You think the child loves their parents less because their parents are same-sex parents? Do you think that child wants less the embracement of the dignity of marriage and what it offers than any other child? ... If you're concerned about the child, why does Virginia rip that from the child? ... Why does Virginia want to rip that embracement from the child? ... That's the question."

29:45-33:20: Judge Niemeyer on same-sex unions as a new kind of relationship distinct from marriage. "The Supreme Court has elevated marriage to an important relationship.... One of the problems I had with the briefs in this case is that everybody was using the word 'marriage' to talk about different relationships.... Relationship A, which is the core of a family and of a family unit as part of society, was what Maynard recognized when it said that marriage was the foundation of the family and society. That doesn't mean that society and the state cannot recognize a different relationship, call it Relationship B. And not until recently has there been a proposal to have that relationship recognized. Now, to call both relationships 'marriage' if traditionally and historically it's always been thought of to be the core of a family.... We now have a new relationship that I think a state can well show respect to by recognizing a same-sex relationship, which gives a lot of the benefits, but it can't create the same family that has been recognized through history.... To mix the two is to play with language, I think."

38:45-49:45: Judge Niemeyer on strict scrutiny as warranted only with respect to marriage as it has existed for thousands of years. "Only if we are talking about the relationship that the Supreme Court has described as a fundamental right, that is to enter into a relationship of marriage that has been favored by society for thousands of years. American laws simply recognized what had been in existence literally as long as human memory continues. The question is the new relationship that just appeared what thirty, forty years ago, the proposal that we recognize a formal relationship between same-sex people. When we do that, we are entering into a new type of relationship.... You cannot make that union the same as the union that is talked about in the Supreme Court cases."

46:00-46:50: Judge Niemeyer on the difficulty of interpreting Windsor. "My sense of reading Windsor is, I confess, that it is a difficult opinion to read and to get exactly what was being held. But you sense that the main structural thrust is that DOMA was the federal government getting involved in a very important relationship that was the domain of the states, and struck it down on that basis. But that is not all. I acknowledge that it is not all that clear. But the sense that I get is that that is the reason that they addressed the federal statute rather than moving right in and regulating under the Fourteenth Amendment."

54:50-55:50: Judge Niemeyer on the gender-classification argument for heightened scrutiny. "I'm not aware of any person in the world that is the product of other than a man and a woman.... It's a political unit that is a reality that has existed.... The increase in society can only occur by the combination of a man and a woman ... at least as of now; scientifically ... we don't know just where we're headed, but as of now, that's a reality, and ... society has addresssed that as meaningful. So to say we're discriminating against a male or against a female because of their gender when we say the relationship can only be a male and a female does not make sense."

58:05-59:15: Judge Niemeyer on Loving and same-sex marriage. "I can make a distinction ... in any kind of legal analysis between a regulation that says one partner in a marriage cannot be African-American and an argument that says two persons of the same sex cannot be in a marriage, because it doesn't work biologically. And it seems to me that race is benign to the biological issue, and ... two sexes is not benign to it. So the discussion really goes to what is the marriage relationship as understood by the Supreme Court, even at the time of Loving. And I respectfully suggest that even the Court in Loving recognized that marriage between a man and a woman was a fundamental right, and they had not anticipated sexual orientation and same-sex marriage. I think we have a brand-new relationship that we have to look at, and the question ultimately in my view is whether the Constitution really addresses that or whether we should leave it to the states."

1:01:55-1:02:45: Judge Gregory on defining the fundamental right of marriage: "How do you ignore the line of cases from the Lochner era down that every barrier ... that the States imposed ... on marriage have been struck down? ... You can't just take a fundamental right and define it, if you want to take Judge Niemeyer's focus on defining marriage, to the point where the fundamental right of choice is unrecognizable."

1:04:50-1:07:15: Judge Gregory on tradition, adoption, and Virginia's interest in children as disingenuous. "Tradition doesn't get you there counsel.... You're saying that it's procreation that drives this, and child-centered. You don't claim tradition and four-hundred years. That's the context. But the text of your argument is that it's child-centered and procreation. And you would agree that same-sex couples can have children, do you agree? ... What difference does it make? Children are children! Are you making a difference in terms of children, like: are children of a lesser god? ... What are you talking about? The question is, can they have children, yes or no? ... So then a couple who adopts, you would say 'well, you can have children, but not the same way as someone who had it biologically,' what does that mean? That would make no sense, would it? ... Would it make any sense under the law of Virginia that you would say 'you're an adopted child  as opposed to you're a biological child, you're different?' Does that difference make a difference in the law in Virginia? ... Once you're adopted, does it? ... Once you're adopted, does it make any difference under the laws of Virginia ... whether you are the product of a conception biologically of your parents or you're adopted, does it? ... Does it? ... Counsel, I guess you're not grasping my question.... Answer my question.... I see you're not going to answer my question, go ahead.... If you care about children, you want to have more marriages ... it's really disingenuous, in terms of your interest in children, isn't it?"

1:08:10-1:08:35: Judge Gregory on Loving and time. "In Loving, when they went into their home in 1958 in the middle of the night with flashlights and arrested them, convicted them, and sentenced them, and gave them probation on the condition that they don't come back together for twenty-five years, how long does Virginia ask the same-sex couples ... to wait before they come back to Virginia?"


Walsh, Kevin | Permalink