Virginia attorney general will ask Supreme Court to hear marriage equality case

Photo: Mark Herring. Credit: Glenn Fajota/American Foundation for Equal Rights.

Photo: Mark Herring. Credit: Glenn Fajota/American Foundation for Equal Rights.

Virginia Attorney General Mark Herring will ask the U.S. Supreme Court to review a federal appellate court ruling declaring the state’s same-sex marriage ban unconstitutional, his office announced Tuesday.

On Friday, Herring, a Democrat who has said the Virginia ban is unconstitutional, will file a petition for writ of certiorari asking the nation’s highest court to hear Virginia’s marriage equality case and definitively settle the constitutional issues it raises.

Although one of the defendants in the case announced last week after the 4th Circuit Court of Appeals upheld a lower court’s decision finding the Virginia ban unconstitutional that she would appeal to the Supreme Court, Herring’s office stated his filing will ensure no delay arises during the 90-day window available to petition the high court to review the case. 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.

The announcement comes hours after Utah Attorney General Sean Reyes (R) formally appealed a case challenging that state’s same-sex marriage ban to the Supreme Court, illustrating an emerging race among attorneys on both sides of the issue to see that their respective same-sex marriage cases reach the Supreme Court first. The Supreme Court is not obligated to take up either case, and should they decline to do so the lower court rulings will stand.

“Throughout this case, I have fought for the fundamental rights of Virginians and the quickest possible resolution,” Herring said in a statement. “I believe the district and appeals courts ruled correctly in striking down Virginia’s discriminatory marriage ban, but it has long been clear that the Supreme Court will likely have the final word. I want that decision to come as soon as possible and I want the voices of Virginians to be heard. This case has moved forward at an incredibly swift pace, and I look forward to a final resolution that affirms the fundamental right of all Virginians to marry.”

The decision by Virginia’s attorney general to appeal to the Supreme Court was indicated in a motion regrading a stay of the last week’s decision filed Tuesday with the 4th Circuit Court of Appeals. The motion states that while Virginia’s same-sex marriage ban will continue to be enforced pending final judicial resolution, the petition for writ of certiorari will be filed on Aug. 8 to enable the Supreme Court to consider the case at its September conference. The motion also states that a stay of the decision pending appeal is warranted in light of previous decisions, such as that in Utah where the Supreme Court intervened to halt same-sex marriages from proceeding while that case was appealed. The 4th Circuit’s July 28 decision in Virginia was originally delayed from taking effect for 21 days.

“As this Court observed, across the Commonwealth, more than 2,500 same-sex couples are raising more than 4,000 children. They are our fellow Virginians. And the Attorney General is committed to ensuring that the government stops treating them as second-class citizens,” the motion states. “It is with great reluctance, therefore, that the Attorney General agrees that a stay is warranted. The unintended consequences that will befall the Commonwealth and its people if the injunction takes effect prematurely, and the clear signal sent by Evans and Kitchen II, show the necessity of staying the mandate until the Supreme Court can conclusively resolve what may well be the most important civil rights issue of our time. We are nearly there.”

Virginia Marriage Case Stay Motion

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

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