On Tuesday morning, three Virginia judges - Paul V. Niemeyer, Roger L. Gregory, and Henry Floyd - will listen as lawyers representing both the state of Virginia and two same-sex couples debate the 2006 Virginia Marriage Amendment, a ban on same-sex marriage. The decision is expected to be a tight one, as two of the three judges already seem to have made up their minds: Niemeyer is expected go conservative, while the solid money has Gregory leaning towards same-sex marriage. That means the decision will ultimately rest on Henry Floyd, who has worked closely with both George W. Bush's and President Obama's administrations.
The case was filed last summer on July 1st, just days after the Supreme Court's landmark DOMA decision, after Timothy Bostic and Tony London were denied an application a marriage license by the County Clerk. Claiming that Virginia's same-sex marriage ban was super unconstitutional, Bostic and London filed a suit against the state.
At this point the momentum seems to be firmly on the side of same-sex marriage. According to Bloomberg, the last 11 times that the issue has been debated in court, the verdicts have fallen in favor of same-sex marriage, including a February 13 decision from U.S. District Judge Arenda L. Wright Allen who ruled that Virginia's ban on same-sex marriage was unconstitutional.
That's bad news for opponents of same-sex marriage who have cases pending. Experts believe that the outcome of Bostic v. Schaefer could have wide-ranging implications for cases in North Carolina, South Carolina and West Virginia, three states who also fall into the 4th Circuit's jurisdiction.
“It depends on how the 4th Circuit decides the case,” says Matt McGill, one of the lawyers for the plaintiffs. “To the extent the court of appeals is interpreting the Constitution of the United States, that interpretation would be binding on the other states within the 4th Circuit. It could have the effect of striking down marriage bans in West Virginia, South Carolina and North Carolina.”
In the absence of State Attorney General Mark Herring - who publicly refused to defend the ban - Norfolk Circuit Court Clerk George Schaefer has stepped up to the plate. “References to marriage being only between a bride and groom," he says, "i.e. a husband and wife or one man and one woman, pre-date the Commonwealth of Virginia … [Virginia's Marriage Ban] “did not redefine marriage; it memorialized existing laws.”
On the flip side, attorneys for London and Bostic have repeatedly cited a 1967 court case, Loving v. Virginia, which struck down a ban on interracial marriage. The lawyers said in their filing, "The Supreme Court has reaffirmed at least 14 times that the right to marry is one of the most fundamental rights -- if not the most fundamental right—of an individual … the right to marry has always been based on, and defined by, the constitutional liberty to select the partner of one’s choice.”
The ruling on Bostic v. Schaefer most likely won't see the light of day until a few weeks from now, but if I'm being honest, my money is on a verdict that strikes down Virginia's ban on same-sex marriage.