Gay-marriage fight shifts
With the Virginia ruling, decisions increasingly rest with federal appeals courts shaped by President Obama.
WASHINGTON - The overturning of Virginia's gay-marriage ban places the legal fight over same-sex unions increasingly in the hands of federal appeals courts shaped by President Obama's two election victories.
It's no accident that Virginia has become a key testing ground for federal judges' willingness to embrace same-sex marriage after last year's strongly worded pro-gay-rights ruling by the Supreme Court. Judges appointed by Democratic presidents have a 10-5 edge over Republicans on the Richmond-based U.S. Court of Appeals for the Fourth Circuit, formerly among the nation's most conservative appeals courts.
Nationally, three other federal appeals courts will soon take up the issue, in Ohio, Colorado, and California. The San Francisco-based Ninth Circuit is dominated by judges appointed by Democratic presidents. The Denver-based court, home of the 10th Circuit, has shifted from a Republican advantage to an even split between the parties, while the Sixth Circuit, based in Cincinnati, remains relatively unchanged in favor of Republicans during Obama's tenure.
U.S. District Judge Arenda Wright Allen's ruling Thursday, that same-sex couples in Virginia have the same constitutional right to marry as heterosexuals, represented the strongest advance in the South for advocates of gay marriage. She put her own ruling on hold while it is being appealed.
Jon Davidson of the gay rights group Lambda Legal said the "very dramatic" shift in the Fourth Circuit under Obama was an important reason behind the decision to sue for marriage rights in Virginia, which also twice voted for Obama.
Legal experts on the left and right agree that who fills court seats matters. "To be fair, academic studies show that political party affiliation doesn't affect the run-of-the-mill cases, but it does affect the cases you're likely to write about," said Curt Levey, who heads the conservative Committee for Justice.
Theodore Olson, half of the legal team representing two couples in the case decided Thursday, said he is confident about the outcome in the appeals courts "irrespective of the composition of any court. These arguments are so compelling . . . and the arguments presented against marriage equality are so weak."
Defenders of the ban are not conceding that point. "The people of Virginia understand that men and women bring distinct, irreplaceable gifts to family life, especially for children who deserve both a mom and a dad," said Byron Babione, a lawyer for the pro-ban Alliance Defending Freedom.
The issue ultimately is headed to the Supreme Court. When and from which state are not clear.