August 2, 2014

SC author of 4th Circuit gay marriage decision has ‘backbone,’ those who know him say

Henry Floyd isn’t talking about the decision but says he tried to write in simple language, is proud of the words he chose.

One of the hobbies of U.S. 4th Circuit Court of Appeals Judge Henry Floyd is cooking – the South Carolinan reputedly whips up a wicked shrimp gumbo, Cincinnati chili and coq au vin.

“Both as a cook and a judge, you can say Henry Floyd has the right ingredients,” said Columbia longtime lawyer I.S. Leevy Johnson, who served in the mid-1970s in the S.C. House with Floyd, who represented Pickens County.

Those ingredients, say those who’ve known Floyd over the years, include being savvy with people as well as with books and the law – a quiet, courteous personality with the strength to do what he believes is right even if it’s unpopular or might be reversed on appeal.

“He has always been known to have a judicial backbone,” said Jack Duncan of Lexington, immediate past president of the S.C. Association of Criminal Defense Lawyers.

The backbone was on display last week when Floyd, 66, made headlines across the country as the author of the opinion from a three-judge panel - a trail-blazing 4th Circuit Court decision. The 2-1 decision upheld a Virginia federal judge’s ruling that same-sex couples have a Constitutional right to marry. The Richmond, Va.-based 4th Circuit oversees federal courts in both Carolinas, Virginia, West Virgina and Maryland.


In the last paragraph of his 63-page opinion, widely quoted in news accounts, Floyd wrote in part, “We recognize that same-sex marriage makes some people deeply uncomfortable. However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws.”

In an interview last week with The State, Floyd did not comment on his decision, but he indicated he spent a lot of time on that last paragraph.

“I do love that last paragraph. It kind of says it all in a few words,” Floyd said. “We tried to write it in a way that the average person on the street could understand what we’re saying. The entire opinion – I hope – is written that way.”

Asked if he has a goal when he writes an opinion, Floyd chuckled and said, “Yes – to get it right.”

Like the U.S. Supreme Court’s landmark 2013 Windsor decision, which overturned Congress’s Defense of Marriage Act and allowed gay married couples to claim federal benefits, Floyd’s decision last week noted that the children of those marriages are stigmatized and robbed “of the stability, economic security and togetherness that marriage fosters.”

Floyd’s decision overturning a Virginia ban on same-sex marriage was the latest in a string of same-sex marriage decisions in more than a dozen federal district and now two federal appeals courts across the country. All have overturned bans on gay marriage. An appeals court decision – such as the one Floyd wrote – is especially significant, since it is the court just below the U.S. Supreme Court. The issue will ultimately be decided by the U.S. Supreme Court.

Floyd’s decision is likely not beloved in his home state of South Carolina, where in 2006 an anti-gay marriage state ballot referendum passed overwhelmingly, 78 percent to 22 percent.

A critic of Floyd’s decision, Oran Smith, president of the Christian evangelical, interdenominational Palmetto Family Council, said if another referendum were held today in South Carolina, traditional-marriage-only supporters would win again, though perhaps not by the same margin as in 2006.

“I wish no ill will on him personally, but I certainly disagree with his finding,” said Smith, who hopes the U.S. Supreme Court will allow each state to determine for itself what defines marriage. “If that takes overturning his decision, that’s what the Supreme Court should do. Marriage is clearly a state issue.”

Across the country, and perhaps in the Palmetto State, too, sentiment regarding same-sex marriage and being openly gay has undergone a sea change in recent years.

The military is now accepting gays, and even NBA and NFL players are starting to “come out.” A recent national Gallup poll found 55 percent overall support for same-sex marriage and 80 percent support among the young.


Floyd, the eldest of three children, comes from a homespun background.

Floyd was born in Brevard, N.C., and raised since the age of 2 in Pickens, in the state’s Appalachian foothills. His mother was a homemaker and his father owned a hardware and feed and seed store. He grew up a Baptist.

Introduction to the law came early. Floyd’s paternal grandfather thought the boy should learn about law and politics and on occasion took him to the courthouse to watch trials.

“I can remember going in elementary school. We would watch whatever was up that week,” Floyd recalled. “Back then, we didn’t have a lot of court, just four weeks a year, two in June, and two in January.”

Floyd was fascinated. “It was kind of a ‘wow’ – good lawyers going at each other, and there’s a judge there to referee things. They could argue something fiercely, and then, when all was said and done, they’d shake hands and move on.”

“Even at a young age, I could tell some lawyers were better than others,” Floyd said.

Floyd did four years at Wofford, where he was student body treasurer his senior year, and focused on history. After graduation in 1970, he entered the University of South Carolina law school. In his final year, in 1972, Floyd won a seat in the S.C. House of Representatives, where he quickly became noticed.

“He was one of the smartest lawmakers in the General Assembly, and he and (future S.C. Chief Justice) Jean Toal were the ‘go-to’ people,” said Johnson, who served with both. “They would be in the thick of things in any complex legislation.”

In the 1970s, recalled Toal last week, it was the dawn of progressive legislation in South Carolina in areas such coastal zone management, ethics, public utilities reform and government restructuring.

“He was a key figure in all those initiatives, a master strategist, and he brought an ability to really collaborate with people and persuade people, along with his razor-sharp intellect,” Toal said. “He loved getting into the research and books – we absolutely became a team – and he was also an excellent floor leader.”

After becoming a state judge in 1992, Floyd pioneered what became a long-lasting effort to modernize South Carolina’s long-clogged and overcrowded court dockets, Toal said.

In Richland County, Floyd worked for more than a year with the solicitor, public defender, clerk of court and lawyers to put all cases on a schedule, getting some dismissed and others to trial or pleas, Toal said.

“He understood the business process from beginning to end,” she said.


A few of Floyd’s opinions since joining the federal bench in 2003 illustrate his ability to take stands:

• In 2005, Floyd – in one of the first decisions that brought him national attention – ruled that an American citizen, Jose Padilla, arrested in Chicago and being held as an enemy combatant in a Navy brig in Charleston, should be charged with a crime or released. At the time, when the nation was still reacting to the 2001 terrorist attacks, judges’ decisions that acknowledged that American citizens charged with terrorism-related offenses have rights were not popular.

In the Padilla case, Floyd ruled that the president of the United States doesn’t have the power to unilaterally throw people in jail without charging them. “To do otherwise would not only offend the rule of law and violate this country’s constitutional tradition, but it would also be a betrayal of this nation’s commitment to the separation of powers that safeguards our democratic values and individual liberties,” he wrote.

University of Richmond constitutional law professor Carl Tobias, a student of 4th Circuit affairs, called Floyd’s Padilla decision “very courageous. ...The reason Judge Floyd wasn’t elevated in his first years as a judge to the 4th Circuit by the Bush Administration is because he showed some backbone with Padilla.”

• In 2013, Floyd – who became a 4th Circuit judge in 2009 – Floyd wrote an opinion in which he found that some North Carolina federal prosecutors had a troubling pattern of withholding evidence from defendants.

The abuses by prosecutors “violate constitutional guarantees, and misrepresentations erode faith that justice is achievable,” Floyd wrote in a decision known as U.S. vs. Bartko.

• Earlier this year, Floyd authored an opinion upholding openness in federal courts and rebuking a Maryland district court judge for sealing records in a case involving an allegation to the Consumer Product Safety Commission that one of a company’s products was harmful.

“The right of access (to the courts) is widely shared among the press and the general public alike, such that anyone who seeks and is denied access to judicial records sustains an injury,” Floyd wrote in Doe vs. Public Citizen.


Lawyers and judges who’ve known Floyd over the years weren’t surprised when he wrote the ground-breaking opinion for the 4th Circuit.

As a circuit judge, Floyd excelled, law school classmate and Columbia lawyer Jack Swerling said. “He wants you to be prepared, he wants you to know the law – he knows the law,” said Swerling, who tried several murder cases in front of Floyd. “He didn’t want a lot of nonsense, but he believed in letting lawyers try their case.”

Swerling noted Floyd’s decision runs counter to the conservative religious culture of most of the five states in the 4th Circuit. But he said he wasn’t surprised.

“He has the intellect, ability and the character to take a major step forward, but it’s really not what the people in the South are ready to sign off on yet,” said Swerling, who agrees with the decision.

“We’ve progressed,” Swerling said, “And one point, maybe 10 years ago, I might not have agreed with it. But now I can say I am glad he was in my class. I guess I’ve evolved.”

Floyd’s decision last week did not immediately require Virginia or other states in the 4th Circuit, including South Carolina, to begin issuing marriage licenses to gay couples. Maryland already allows same-sex marriage.

The appeal was from a Virginia case and was the second such decision at the federal appellate level. In June, the Denver-based 10th Circuit ruled in favor of same-sex marriage in a Utah case.

The losing party, the state of Virginia, can ask the three judges to reconsider. Or it can ask all 15 members of the 4th Circuit Court to hear the case. Or Virginia could try to go straight to the U.S. Supreme Court.

In South Carolina, a civil lawsuit filed last year in federal court seeking to overturn the state’s bans on same sex marriage has been on hold pending a ruling by the 4th Circuit.

So the S.C. case still has yet to be heard before a federal judge. It’s unclear when the case will go forward, according to records on file.

The suit against Gov. Nikki Haley and state Attorney General Alan Wilson was filed by S.C. Highway Patrol trooper Katherine Bradacs and Tracie Goodwin, a former deputy with the Richland County Sheriff’s Department. The two, who have children, were legally married in the District of Columbia.

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