Supreme Court urged to allow Virginia same-sex marriages to proceed

Photo: U.S. Supreme Court. Credit: Ian Koski/flickr.

Photo: U.S. Supreme Court. Credit: Ian Koski/flickr.

U.S. Supreme Court Chief Justice John Roberts was urged Monday to reject a request to delay the start of Virginia same-sex marriages set to begin in the state later this week.

“Virginia’s exclusion of gays and lesbians from the fundamental right to marriage causes painful, irreparable, and immeasurable injury to large numbers of its citizens every day and every moment it remains in existence, and humiliates and stigmatizes these individuals and their children in ways too numerous to enumerate,” said Ted Olson, lead co-counsel for the Bostic plaintiffs, in a statement. “Courts all over the country are overwhelmingly and with an unprecedented degree of unanimity recognizing that there is no legal basis for continuing to impose this kind of harm on our fellow citizens. There is no justification for staying the effect of the Fourth Circuit’s decision upholding the rights of Virginians to marry the person they love.”

Following a 2-1 decision last week by the 4th Circuit Court of Appeals to deny a motion to put on hold a July decision upholding a lower court’s ruling finding unconstitutional Virginia law prohibiting same-sex marriage and recognition of same-sex marriages performed in other states, same-sex marriages are scheduled to begin following the issuing of a mandate by the circuit court at 8 a.m. Aug. 21. However, defenders of the Virginia ban have asked the Supreme Court to intervene and put those marriages on hold pending appeal.

On Aug. 14, attorneys for Prince Williams County Clerk of Court Michele McQuigg asked Roberts, who oversees the 4th Circuit, to stay the decision pending appeal. 

McQuigg’s attorneys wrote that to deny a stay could cause other circuit courts to allow same-sex marriages to proceed as cases are appealed and “invite needless chaos and uncertainty rather than facilitate the orderly and dignified resolution of a constitutional question of enormous national importance.”

In their response to that filing, attorneys for the plaintiffs rejected those arguments. 

“Because Clerk McQuigg has not established a fair prospect of success on the merits even if this Court grants a petition for certiorari, has failed to identify any irreparable harm associated with the issuance of the mandate, and cannot establish that the balance of equities weighs in favor of staying the Fourth Circuit’s decision, the application for a stay should be denied,” the motion states.

However, attorneys for the plaintiffs argue that should Roberts grant a stay, the Supreme Court should treat McQuigg’s application for a stay as her petition to the Supreme Court to hear the case (McQuigg’s petition for a writ of certiorari is not required to be filed until Oct. 27.).

“That petition should be granted because the extraordinarily important question presented in this litigation directly affects the most basic civil rights of gay and lesbian individuals across the country and is the subject of ongoing litigation in dozens of jurisdictions. Only this Court can definitively resolve that issue and put a swift and immediate end to the denial of gay and lesbian Americans’ fundamental right to marry,” the filing states. “Treating Clerk McQuigg’s Application as a petition for a writ of certiorari will hasten this Court’s resolution of the case and minimize the ongoing, daily irreparable injury that Plaintiffs — and tens of thousands of other gay men and women — will continue to sustain each day that a stay remains in place.”

That was an argument made by the American Civil Liberties Union, ACLU of Virginia and Lambda Legal in a motion filed Monday as well. 

“We will fight these last-ditch desperate attempts to delay the inevitable arrival of the day when same-sex couples can marry in Virginia,” Jon Davidson, Legal Director at Lambda Legal, said in a statement. “But if the Court grants a stay, we want this issue to be decided as quickly as possible.”

Bostic v. Schaefer was originally filed on behalf of two same-sex couples in July 2013 by the legal team that challenged California’s Proposition 8, including the American Foundation for Equal Rights (AFER) along with attorneys Ted Olson and David Boies. The American Civil Liberties Union (ACLU) and Lambda Legal joined the case in March on behalf of all of Virginia’s same-sex couples.

But not all opponents of Virginia’s marriage ban believe marriage licenses should be issued to same-sex couples just yet. Virginia Attorney General Mark Herring, a Democrat opposes the ban and has petitioned the Supreme Court to hear the case, concurred with McQuigg’s motion in a separate filing Monday calling for a stay pending appeal.

“Throughout this process we have fought for equality while also recognizing the need for an orderly process,” Herring said in a statement. “I’ve worked to move the case along quickly and asked the Supreme Court to take this extraordinary step because I don’t want this discriminatory ban to stay in place one day longer than necessary. However, a stay is warranted in light of the negative impact on Virginia children, families, and businesses if the Supreme Court eventually rules against marriage equality and forces an unwinding of Virginians’ marriages, adoptions, inheritances, or workplace benefits.”

Herring has previously voiced support for a stay.

Although Roberts could either decide himself to grant or deny the stay, he is more likely to refer the matter to the full Supreme Court. In previous cases striking down same-sex marriage bans, including in Utah, the Supreme Court has blocked same-sex couples from marrying while those cases have been appealed. So far the Supreme Court has been asked to hear arguments in three federal appeals court decisions upholding rulings by lower courts striking down same-sex marriage bans in Virginia, Utah and Oklahoma.

 Read the filing from attorneys for the plaintiffs:

Response to Virginia Application for Stay (AFER)

 Read the filing from Attorney General Mark Herring:

AG Herring Response to Virginia Stay Request

Justin Snow is Metro Weekly's political editor and White House correspondent. He can be reached at jsnow@metroweekly.com.

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