Today a three-judge panel on the 4th Circuit Court of Appeals struck down Virginia's same-sex marriage ban as unconstitutional in a 2-1 ruling.
"We recognize that same-sex marriage makes some people deeply uncomfortable," the majority said. "However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws."
The circuit court has jurisdiction over Virginia, Maryland, West Virginia, North Carolina and South Carolina. The panel's decision can be appealed to the full court or to the Supreme Court.
Like the first appeals court panel to rule on the issue this year in Utah and Oklahoma, the three-judge panel was deeply divided, but the swing judge -- in this case Henry Floyd, who was named to the bench by George W. Bush and elevated to the circuit court by President Obama in 2011 -- came down on the side of same-sex marriage.
Judge Roger Gregory, originally appointed by Bill Clinton in 2000, joined Floyd in the majority. Presiding Judge Paul Niemeyer, a George H.W. Bush nominee, dissented.
"I do strongly disagree with the assertion that same-sex marriage is subject to the same constitutional protections as the traditional right to marry," Neimeyer said. "I would reverse the district court's judgment and defer to Virginia's political choice in defining marriage as only between one man and one woman."
The Virginia case, which involves two couples seeking to marry in the state and two couples seeking to have their marriages from other states recognized, now gives the Supreme Court a choice. It can hear the Utah or Oklahoma cases from the 10th Circuit, wait for Virginia's to be appealed, or wait even longer for other gay marriage cases scheduled for appellate hearings in August, September and beyond.
One way or another, legal experts agree the high court likely will accept a case for its 2014 term beginning in October or the 2015 term that follows. Niemeyer joked about that during oral arguments in May, calling his courtroom a "way-station" en route to Washington.
Which means technically, unless a stay is issued, same-sex marriage is now legal in Virginia, West Virginia, North and South Carolina (already legal in Maryland as of Jan 1.) Things just got real interesting, as that's the second Circuit Court to toss same-sex marriage, and the first in the South.
Again, all indications are this is headed for the Supreme Court. The only question is whether it will be 5-4 in favor of same-sex marriage or against it.