Carol Schall, center, her partner, Mary Townley, right, and their daughter, Emily Schall Townley, left, greet supporters of same-sex marriage outside of the Fourth Circuit Court of Appeals in Richmond, Va., on Tuesday, May 13, 2014.
Carol Schall, center, her partner, Mary Townley, right, and their daughter, Emily Schall Townley, left, greet supporters of same-sex marriage outside of the Fourth Circuit Court of Appeals in Richmond, Va., on Tuesday, May 13, 2014. (Scott P. Yates / ZUMAPRESS.com)

Virginia is not the only state with a stake in the same-sex marriage arguments heard on Tuesday before a federal appellate panel. If Virginia’s ban goes, so too may bans in North Carolina, South Carolina and West Virginia.

And, judging by comments made by the three-judge panel of the U.S. Court of Appeals for the Fourth Circuit hearing Virginia’s case, the fate of the state’s ban, one of the most restrictive in the country, could hang on the vote of one judge.

All four states lie within the Fourth Circuit’s jurisdiction. Depending on how the final opinion is written in Virginia’s case, a ruling that finds the state’s ban unconstitutional might poke a significant hole in Southern states’ strong opposition to gay marriages.

As arguments wrapped up Tuesday in Bostic v. Schaefer and Harris v. Rainey, the panel appeared divided, with a third judge leaning somewhat in favor of the challengers to the state prohibition.

Judge Paul Niemeyer, appointed by President George H.W. Bush, presided over arguments that ran longer than the scheduled 60 minutes. He voiced strong skepticism that a state could not, as Virginia has done, elevate the stability of a relationship recognized throughout history as between a man and a woman over the “brand new relationship” of same-sex couples.

“You’re making good policy arguments that 17 states have bought and I’m sure that number will grow,” the judge said during a long exchange with Theodore Olson of Gibson, Dunn & Crutcher, counsel to two same-sex couples. “They can have a new relationship that’s parallel but they can never be the same. The question ultimately in my mind is whether the Constitution addresses that or it is left to the states.”

Olson rejoined, “You’re saying my clients have a second-class relationship. We are withholding benefits from a class of our citizens based on their sexual orientation and gender of the person they love. That violates the equal-protection clause and the due-process clause.”

Judge Roger Gregory, a recess appointment by President Bill Clinton in 2000 who was later nominated to the circuit court by President George W. Bush, closely quizzed one of the ban’s defenders, David Oakley of Poole Mahoney in Chesapeake, Va., counsel to Norfolk Circuit Clerk George Schaefer III.

Returning repeatedly to the Supreme Court ruling in Loving v. Virginia, invalidating Virginia’s ban on interracial marriages, Gregory told Oakley, “The essence of the right to marry is to marry the person they choose. It’s choice, individual choice. It’s autonomy. One of the most important rights in America. How can Virginia define it to a point its fundamental essence is unrecognizable?”

The third panel member, Judge Henry Floyd, appointed a district court judge by George W. Bush in 2003 and elevated to the appeals court by President Obama in 2011, asked few questions.

In February, U.S. District Judge Arenda Wright Allen in Bostic struck down Virginia’s constitutional amendment, approved by voters in 2006, that bans same-sex marriage and civil unions and prohibits recognition of same-sex marriages performed in other states. Allen held that the bans violated Fourteenth Amendment rights to due process and equal protection of the law.

The challengers in Bostic, two gay couples, were represented by Olson and David Boies of Boies, Schiller & Flexner, supported by the organization American Foundation for Equal Rights. It was the same legal team that successfully challenged California’s ban, Proposition 8, but failed in 2013 to win a U.S. Supreme Court ruling on the constitutional question of whether states could define marriage as only between a man and a woman.

Virginia’s newly elected attorney general chose not to defend the state’s constitutional amendment on appeal, so the Fourth Circuit appeal was brought by two county circuit clerks. Representing them on Tuesday were Oakley and David Austin Nimocks of Alliance Defending Freedom, an organization defending a number of other state same-sex marriage bans.

The Fourth Circuit also agreed to allow lawyers in a pending class action, Harris v. Rainey, to intervene in the appeal. James Esseks of the American Civil Liberties Union argued for those challengers. He was supported by Virginia Solicitor General Stuart Raphael.

Paul Smith of Jenner & Block, who has been assisting the ACLU in Harris, said following the arguments, “Clearly one judge, Gregory, seemed very favorably disposed to the plaintiffs’ and another, Niemeyer, expressed a consistent view that ‘marriage’ means one man and one woman. Either could change, but I doubt it. Floyd said much less and was a little hard to read. But my assessment was that he may well side with Gregory.”

Few new arguments were advanced during Tuesday’s hearing by either side of the marriage debate, which is playing out now in numerous courts around the country.

Olson and his colleagues leaned heavily on the equal-protection and due-process holdings in the Supreme Court’s U.S. v. Windsor decision last June, invalidating the definition of marriage in the federal Defense of Marriage Act, as well as on the 1967 Loving decision. Oakley and Nimocks insisted that Windsor stood for the proposition that regulation of marriage is the near exclusive province of the states and that marriage’s core purpose is the procreation of children. They also relied on the Supreme Court’s recent affirmative-action decision, Schuette v. Coalition to Defend Affirmative Action, in which a 6-2 majority held that voters could amend their state constitution to prohibit racial considerations in education.

Niemeyer observed: “It’s pretty evident you’re here in Richmond as a way station up [Interstate] 95 [to the U.S. Supreme Court].”

Eighteen states and the District of Columbia now permit same-sex marriages. Besides the Fourth Circuit, appeals are pending in the Fifth, Sixth, Ninth and Tenth circuits.

Contact Marcia Coyle at mcoyle@alm.com.