Byron J. Babione of the Alliance Defending Freedom filed a 13-page motion with the 4th U.S. Circuit Court of Appeals in Richmond on behalf of Prince William County Clerk Michèle McQuigg that indicates she will file a “petition for a writ of certiorari” no later than October 26.
A three-judge panel on the 4th Circuit on July 28 upheld U.S. District Judge Arenda L. Wright Allen’s ruling that struck down Virginia’s constitutional amendment that defines marriage as between a man and a woman.
The 4th Circuit’s decision is slated to go into effect on August 18, pending the outcome of McQuigg’s motion.
Babione said Virginia Attorney General Mark Herring, who announced in January he will not defend the commonwealth’s same-sex marriage ban in court, has agreed to a stay of the 4th Circuit’s decision.
Babione wrote lawyers representing two lesbian couples from the Shenandoah Valley who are challenging Virginia’s same-sex marriage ban “do not consent to the relief requested and intend to file an opposition.” He said attorneys representing the lead plaintiffs — Timothy Bostic and Tony London of Norfolk and Carol Schall and Mary Townley of Chesterfield — “did not respond with their petition on this motion.”
“Good cause supports this request to stay the mandate,” wrote Babione. “A stay will ensure the orderly resolution of the important constitutional question presented in this case while avoiding uncertainty for the public and irreparable injury to the commonwealth.”
Babione said “the absence of a stay will likely produce legal uncertainty and confusion.”
He noted hundreds of same-sex couples in Utah married after U.S. District Judge Robert J. Shelby late last year struck down the state’s constitutional amendment defining marriage as between a man and a woman.
The U.S. Supreme Court a few weeks later stayed Shelby’s decision, pending the outcome of an appeal.
“Failing to stay the mandate pending the filing of a petition for writ of certiorari is likely to result in similar confusion and uncertainly in Virginia,” wrote Babione. “In the absence of a stay, same-sex couples in Virginia may obtain marriage licenses during an interim period only to have their validity become immediately questionable should the Supreme Court disagree with the panel’s resolution of this case.”
Michael Kelly, a spokesperson for Herring, told the Washington Blade on Saturday the attorney general “believes the district and appeals court got it right, but he said throughout this process that the Supreme Court will likely have the final word.”
“During this case he has defend the fundamental rights of Virginians and expedited the schedule to settle the issue as soon as possible,” said Kelly.
Adam Umhoefer, executive director of the American Foundation for Equal Rights, which is representing the plaintiffs, in a statement to the Blade did not explicitly say whether his organization plans to challenge McQuigg’s motion.
“Every court to hear this issue has agreed: there is no good reason to deny gay and lesbian Virginians and Americans the freedom to marry,” said Umhoefer. “Opponents of equality may try to continue the fight, but they will fail.”
Same-sex couples in 19 states and D.C. are able to legally marry.
More than two dozen federal and state courts have ruled in support of nuptials for gays and lesbians since the U.S. Supreme Court in June 2013 struck down a portion of the Defense of Marriage Act.
Utah Attorney General Sean Reyes last month announced he would appeal to the U.S. Supreme Court the 10th U.S. Circuit Court of Appeals’ decision that upheld Shelby’s ruling that struck down his state’s marriage amendment. The 6th U.S. Circuit Court of Appeals in Cincinnati on August 6 is scheduled to hear oral arguments in five cases that challenge same-sex marriage bans in Michigan, Ohio, Kentucky and Tennessee.
Texas Attorney General Greg Abbott last week filed an appeal with the 5th U.S. Circuit Court of Appeals in New Orleans that seeks to overturn a federal judge’s ruling earlier this year that found his state’s gay nuptials ban unconstitutional.