The same three judge panel with the 4th U.S. Circuit Court of Appeals that heard oral arguments in the case in May dismissed Prince William County Circuit Court Clerk Michèle McQuigg’s motion to delay its July 28 decision.
Judges Henry F. Floyd and Roger L. Gregory voted against McQuigg’s motion, while Judge Paul V. Niemeyer backed it.
Virginia Attorney General Mark Herring — who continues to argue against the constitutionality of the commonwealth’s same-sex marriage ban — last week formally petitioned the U.S. Supreme Court to consider the case that Timothy Bostic and Tony London of Norfolk initially filed in July 2013.
Carol Schall and Mary Townley of Chesterfield joined the lawsuit last September.
The American Civil Liberties Union and Lambda Legal are representing two lesbian couples from the Shenandoah Valley who challenged the state’s same-sex marriage ban in a separate case that has become a class action.
“Virginia’s loving, committed gay and lesbian couples and their children should not be asked to wait one more day for their fundamental right to marry,” Adam Umhoefer, executive director of the American Foundation for Equal Rights, which is representing Bostic and London and Schall and Townley, told the Washington Blade. “The Fourth Circuit Court’s decision is consistent with dozens of other federal and state courts throughout our country, affirming this simple principle of equality under the law.”
James Parrish, executive director of Equality Virginia, a statewide LGBT advocacy group, also applauded the ruling.
“There is no doubt that Virginia is ready for the freedom to marry,” he said. “We are thrilled that the 4th Circuit denied the request for a stay and hope that we will see wedding celebrations in Virginia as early as next week. Marriage validates the commitment couples make to one another and, if the Supreme Court doesn’t intervene, achieving marriage equality in Virginia will be a tremendous step forward.”
Victoria Cobb, president of the Family Foundation of Virginia, blasted the 4th Circuit’s decision not to stay its July 28 ruling.
“It’s shocking that the Fourth Circuit has introduced chaos to Virginia where other appellate courts have recognized that the final decision will likely be made by the Supreme Court,” she said. “This decision suggests an arrogance by these judges that is simply appalling.”
Same-sex couples could begin to legally marry in Virginia on August 20, pending any request for an emergency stay from the U.S. Supreme Court.
The anti-gay legal firm known as Alliance Defending Freedom, which is defending Virginia’s marriage ban on behalf of McQuigg, announced shortly after the Fourth Circuit decision it would make another stay request with the U.S. Supreme Court.
“The people of Virginia and every other state should continue to be free to preserve marriage as the union of one man and one woman in their laws if they choose to do so,” said Alliance Defending Freedom Senior Counsel Byron Babione. “Because the 4th Circuit chose not to place a hold on its decision as other courts – including the U.S. Supreme Court – have done in nearly identical cases, we intend to ask the high court to do so in this case before the 4th Circuit’s mandate goes into effect. We trust the Supreme Court will grant our request in order to ensure an orderly and dignified resolution of this important constitutional question.”
The request would go to Chief Justice John Roberts, who’s responsible for stay requests for the Fourth Circuit. Roberts can decide the matter on his own, or refer the request to the entire court.
It remains to be seen what action the Supreme Court will take, but justices have already granted a similar stay in the lawsuit seeking marriage equality in Utah known as Kitchen v. Herbert.
The Washington Blade will provide further updates as they become available.