RICHMOND — A panel of judges sharply disagreed Tuesday
over whether Virginia’s ban on same-sex marriage violates the Constitution,
trading pointed questions at an emotional appeals court hearing that previewed
the legal issues likely to eventually land at the Supreme Court.
At the hearing before the U.S. Court of Appeals for the
4th Circuit, two judges with distinctly different views dominated the
questioning over whether marriage is a
fundamental right, protected by the Constitution that must be
offered regardless of sexual orientation.
The three-judge panel was reviewing a February decision by
a Norfolk federal district judge that Virginia’s ban — which also bars
recognition of same-sex marriages performed in states where they are legal,
along with any legal arrangements that resemble marriage, such as civil unions
— violates guarantees of equal protection and due process.
Five lawyers took turns on the podium, but the focus was
on the veteran judicial panel. The opposing viewpoints of two of the jurists
suggested that the third, independent-minded Circuit Judge Henry F. Floyd,
might hold the deciding vote.
A former Democratic state legislator from South Carolina,
Floyd has shown a bipartisan appeal. He was nominated to the federal bench by
President George W. Bush and elevated to the 4th Circuit by President Obama. He
is said to be a friend of both Democratic Rep. James E. Clyburn (S.C.) and the
state’s Republican senior senator, Lindsey O. Graham.
As a district judge, Floyd was perhaps best known for
ruling that Bush did not have the power to detain a U.S. citizen, José Padilla,
as an “enemy combatant.” The 4th Circuit later overturned the decision, but
Padilla was charged in a civilian court and convicted of terrorism-related
crimes.
However the panel rules — a decision could come before
the end of the summer — the judges acknowledged that the work they and other
appeals court judges around the country are doing is probably just teeing up
the issue for the Supreme Court.
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