RICHMOND, Va. — 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 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 U.S. Rep. James Clyburn, D-S.C., and U.S. Sen. Lindsey Graham, R-S.C.

As a district judge, Floyd was perhaps best known for ruling that the federal government did not have the power to detain a U.S. citizen, Jose 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.

Presiding Circuit Judge Paul Niemeyer joked that the court was a “way station” as the issue moved up Interstate Highway 95 to Washington.

“Maybe we should just say, ‘We pass,’ and let the case go on,” Niemeyer said deep into more than an hour of often-heated arguments.

He clearly appeared to be on one side of the issue. He resisted the arguments of Washington lawyer Theodore Olson, on behalf of couples challenging the ban, that the Supreme Court has recognized marriage as a fundamental right on 14 occasions. And fundamental rights, Olson said, cannot be withheld from “one class of people” that the state creates.

Niemeyer said that the vision of marriage the justices found fundamental was the “union of a husband and wife.” The state has an interest in marriage, he said, because of the capability of heterosexual couples to produce children, something same-sex couples cannot do on their own.

“It doesn’t work biologically,” Niemeyer said.

Legally recognized same-sex unions are a “brand new” kind of relationship that states may sanction or prohibit, but they are not the same as marriage, he said.

Circuit Judge Roger Gregory was firmly on the other side. He continually compared the case to Loving v. Virginia, the 1967 case in which the Supreme Court struck down the state’s ban on interracial marriage.

“The essence of marriage,” Gregory told a lawyer representing the two circuit court clerks who are defending Virginia’s restrictions, “is the individual’s choice to marry the person they choose.”

The interracial couple Mildred and Richard Loving needed the landmark ruling to live openly in Virginia, Gregory said. “How long do same-sex couples have to wait?” he asked.

Floyd largely withheld his view, but his questions generally seemed to favor those seeking to overturn the restrictions.

He asked, for instance, why Virginia would not recognize same-sex marriages performed in other states where they are legal.

The commonwealth is not required to recognize unions that are “inconsistent with its public policy,” said David Austin Nimocks, a lawyer with the conservative Alliance Defending Freedom, which is representing one of the circuit court clerks.

Niemeyer was nominated to the court in 1990 by President George H.W. Bush, and Gregory was a recess appointment by President Bill Clinton in 2000 who was subsequently nominated by President George W. Bush.

Floyd was named to the district court in 2003 and elevated to the 4th Circuit in 2011.

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