Inside the Courts

Conservatives legislators and moderate judges joust over marriage and bathrooms

The surge of conservative power in the N.C. legislature has found its foil in the 4th Circuit Court of Appeals, which has become far more moderate with President Barack Obama’s appointments.
The surge of conservative power in the N.C. legislature has found its foil in the 4th Circuit Court of Appeals, which has become far more moderate with President Barack Obama’s appointments. 4th Circuit Court of Appeals

Judge Henry Floyd once said that he writes his legal opinions so “the average person on the street can understand what we’re saying.”

If clarity is his goal, Floyd’s decisions on the 4th Circuit Court of Appeals have been crystal. They also have driven home the point that while partisan battles over Supreme Court nominees get the headlines, less ballyhooed presidential judicial appointments can have far greater impact.

Floyd, 68, was born in Brevard. He was raised and still lives in Pickens County, S.C. In what must be one of the last acts of bipartisanship involving one of the country’s most conservative states, President Barack Obama joined with Republicans and Democrats on South Carolina’s congressional delegation to nominate Floyd to the federal appeals court in 2009.

Behold what that decision has wrought:

In 2014, Floyd wrote the opinion that helped strike down same-sex marriage bans in both Carolinas.

Two weeks ago in a Virginia case, some legal experts say Floyd used his pen to gravely wound North Carolina’s House Bill 2, which, among other things, limits legal protection of the LGBT community and requires transgender individuals to use the bathroom for the sex on their birth certificates.

In both rulings, Floyd went firmly against the political grain of his native and adopted states. South Carolina voters banned gay marriage a decade ago with almost an 80 percent vote. In 2012, North Carolina became the last of 31 states to approve its own same-sex marriage ban. In March, the GOP-led General Assembly in Raleigh passed the hotly debated HB2 in part to block a city of Charlotte move to expand LGBT rights, including bathroom access.

Courts regularly call balls and strikes on state policy. Yet, the fact that a South Carolina judge – sitting on what traditionally has been the country’s most conservative appeals courts – authored the legal argument for ground-breaking social reforms has been a particular irony – or pain – for Carolina conservatives to endure.

“I guarantee you (former South Carolina U.S. Sen.) Jim DeMint bangs his head against the wall over Floyd’s appointment on a daily basis,” says Brian Clarke, a Charlotte School of Law professor.

Floyd is one of seven Obama appointments that have dramatically overhauled the Richmond, Va.-based 4th Circuit, which has authority over the Carolinas, Virginia, West Virginia and Maryland. Today, two-thirds of its 17 active or senior members have been appointed by Obama or Bill Clinton. The court’s more recent rulings on such issues as police searches, use of force and LGBT rights reflect the shift.

Clarke, an employment law specialist, did his own case study last year – comparing some 400 labor and employment decisions from both the 4th and the 8th Circuit Court of Appeals in St. Louis. Through the years the two have been philosophically comparable, except Obama has made no appointments to the 8th. Based on rulings from 2010-12, when most of Obama’s picks took office, Clarke found that the Richmond court had become 13 percent less conservative than the St. Louis one.

Coincidentally or not, the shift to more moderate-to-liberal decisions from the 4th coincides with the rise of conservative control of the North Carolina General Assembly. Thus the checks and balances between legislatures and the federal courts will play out for years to come on such issues as Voter ID, religious liberty, even bathrooms – much as it did a generation ago in the battles over Civil Rights.

Henry Floyd must appreciate the clearly defined roles.

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