Appellate Advocacy Clinic students Zachary Dunn (’15) and Justin Jenkins (’14) attend oral argument of definition of marriage case in Fourth Circuit Court of Appeals

Photo of Justin Jenkins (’14) and Zachary Dunn (’15)

Justin Jenkins (’14) and Zachary Dunn (’15)

Zachary Dunn (’15) and Justin Jenkins (’14) attended oral argument in the case of Bostic v. Schaefer at the Fourth Circuit Court of Appeals in Richmond, Va., on Tuesday, May 13, 2014.

Bostic presents a facial constitutional challenge to Virginia statutes that define marriage as between one man and one woman and that deny recognition to same-sex marriages consummated in other jurisdictions. Supporters of the marriage laws appealed to the Fourth Circuit from an order by the Eastern District of Virginia holding that the laws violate the Due Process and Equal Protection clauses of the Fourteenth Amendment to the United States Constitution.

Dunn and Jenkins arrived in the early morning hours, because only 40 seats were available to the public, and they sat in the third row, with members of the media in the first two rows. In a packed courtroom with a live feed into an overflow room, parties argued before Judge Paul V. Niemeyer, Judge Roger L. Gregory, and Judge Henry F. Floyd. Supporters of the challenged laws contended that federalism left the power of defining marriage to the States. An attorney with Alliance Defending Freedom argued that States like Virginia are within their prerogative to preserve the centuries-old gender requirement to sustain a healthy environment for child-rearing.

Opposing counsel, including Theodore Olson, an attorney for the American Civil Liberties Union, and the Solicitor General of Virginia, countered that the marriage laws impermissibly deprive citizens of the fundamental right to marry on the basis of their sexual orientation.

The parties spent a significant amount of time discussing what level of scrutiny the Court should apply to the challenged laws. Borrowing language from the Supreme Court’s landmark 1967 case Loving v. Virginia, both sides agreed that “marriage” is a fundamental right. The laws’ opponents argued that marriage is what their clients seek; thus, strict scrutiny must be applied to laws denying that right to a class of citizens – here, same-sex individuals.

The laws’ supporters argued that the right sought is not a right to marriage, but a right to same-sex marriage, which is a relatively new concept that has never been held to be a fundamental right. Thus, the supporters argued, the laws should receive rational basis review, and procreation and child-rearing are legitimate interests supporting the move by Virginia legislators and voters to create and approve the laws.

“How the Court defines the right – whether it chooses a narrow definition or a broad, inclusive one – is likely to be a significant determination that the case ultimately turns on,” Dunn said.

Advocates for both sides took their turn responding to a hard-hitting barrage of questions from two judges, Judge Gregory and Judge Niemeyer. Questions from the bench strongly suggested that Judge Gregory will vote to affirm the District Court’s order and that Judge Niemeyer is just as likely to vote to reverse. Thus Judge Floyd, who asked only two fairly neutral questions during the argument, will probably cast the deciding vote on the fate of Virginia’s marriage laws.

Judge Gregory drilled the laws’ supporters cross-examination style on multiple fronts, including whether the laws differ in substance from anti-miscegenation laws that the Supreme Court struck down in Loving, and why non-procreative heterosexual unions have more worth than homosexual relationships.

In a lengthy statement early into Mr. Olson’s argument against the laws, Judge Niemeyer posited that because a heterosexual union is an entirely different relationship from a homosexual union, calling both relationships “marriage” equivocates on the concept of marriage as a fundamental right. Additionally, Judge Niemeyer asked whether the Constitution requires States to recognize other nontraditional relationships.

During and after the argument, demonstrators for and against the challenged laws thronged the street outside the courthouse with placards, law enforcement officers kept a watchful eye on the crowd, and television news vans lined the sidewalk. “When we left the courthouse, we found ourselves in the middle of a rally!” Jenkins said. “As we were wearing suits and exited right behind some of the counsel, including Mr. Olsen, we were mistaken for attorneys involved in the case.”

Bostic is a milestone in marriage jurisprudence. As Judge Niemeyer colorfully described it during the oral argument, the Richmond-based Fourth Circuit may be only a “way station” for Bostic on its journey up Interstate 95 to its ultimate destination: the Supreme Court of the United States.

Jenkins argued successfully in the Eleventh Circuit earlier this year, the first Wake Forest student to argue at that court. Next year he will clerk for the Honorable Roy Moore, Chief Justice of the Alabama Supreme Court. Dunn will be in the Appellate Advocacy Clinic and will be on the National Moot Court Team next year.