"If you're concerned about the children, why does Virginia want to rip that away from a child?" Judge Roger Gregory raises the issue of children of same-sex couples in a court hearing Tuesday.

Chris Geidner/BuzzFeed Supporters of marriage equality rally on the north side of the 4th Circuit Court of Appeals in Richmond on Tuesday morning.

RICHMOND, Va. — The 4th Circuit Court of Appeals looks likely to declare Virginia's ban on marriages for same-sex couples unconstitutional, following the path set by trial judges all over the country. Two of the court's three judges appeared ready to strike down the ban Tuesday at oral arguments in Richmond — the third federal appellate hearing on the question currently winding its way through federal and state courts throughout the nation. Judge Paul Niemeyer was the only judge hearing the arguments who pressed heavily on the side of the state's ban, saying that same-sex couples are creating a "brand-new relationship" and that "it takes a male and female to have a child, to have a family." The "core of a family" is the mother–father relationship, Niemeyer told Ted Olson, who was arguing for same-sex couples fighting the 2006 marriage ban. Describing that relationship as "A" and same-sex couples' relationships as "B," Niemeyer said that "the state can redefine it and call it marriage," but that wouldn't change the fact that "these are two different relationships." Although arguments about defining fundamental rights and the level of scrutiny to be used in reviewing the 2006 amendment — the questions central to the briefs in the case — were discussed during the hour, Niemeyer's focus at times seemed out of place, echoing as it did a Kentucky Court of Appeals opinion from 1973 that dismissed a same-sex couple's attempt to get a marriage license because "what they propose is not a marriage." The other judges mostly did not engage directly with Niemeyer's argument, appearing prepared to continue the path laid out by the Supreme Court in its trilogy of "gay rights" cases in providing additional protections to gay, lesbian, and bisexual people and, in striking down the Defense of Marriage Act last year, same-sex couples' relationships.

Chris Geidner/BuzzFeed Opponents of same-sex couples' marriage rights rally on the south side of the 4th Circuit Court of Appeals in Richmond on Tuesday morning.

Although Judge Henry Floyd didn't ask much during the arguments, he suggested he understood a path was being laid out by the court — specifically in last year's opinion in United States v. Windsor striking down the Defense of Marriage Act's federal ban on recognizing same-sex couples' marriages. Floyd led off the argument by asking lawyer David Oakley the first question of the day. Raising the 1972 Supreme Court decision dismissing a marriage case brought by a same-sex couple in Minnesota because, the court ruled, there was no "substantial federal question" raised by the case, Floyd asked whether it was left "intact" after last year's opinion striking down DOMA in United States v. Windsor. And, though Oakley said it was, Floyd later returned to the question, noting that the case had been a "summary dismissal." Judge Roger Gregory later picked up that point with Austin Nimocks, the Alliance Defending Freedom lawyer who was representing clerk of court Michele McQuigg. Of the 1972 case, Gregory asked Nimocks incredulously, "You think this still isn't a substantial federal question?" Gregory pounded Nimocks with questions throughout his argument. Detailing the line of Supreme Court cases addressing privacy rights, Gregory said of Virginia's ban on same-sex couples' marriages, "You can't make it so that this 'fundamental right' of choice is unrecognizable." Of the argument that the ban is about supporting the state's aim of providing children with their mother and father, Nimocks said, "I don't think Virginia denies anything to same-sex couples that they don't deny a single mother" or a grandparent raising a grandchild. Gregory shot back: "If you're concerned about the children, why does Virginia want to rip that away from a child" whose parents are of the same sex? Nimocks replied that same-sex couples don't give children a mother and a father and that that mother-father possibility is the state's reason for marriage — the point extended by Niemeyer in his questions in the case. That, and an exchange about whether adopted children are different than biological children, led Gregory finally to say, "It's really disingenuous, your interest in children."

Chris Geidner/BuzzFeed Virginia Attorney General Mark Herring leads off a news conference by supporters of marriage equality after the 4th Circuit Court of Appeals heard arguments in a case challenging Virginia's marriage ban on Tuesday.