August 14, 2014 at 6:29 pm EDT | by Chris Johnson
Clerk calls on Supreme Court to block Virginia same-sex marriages
Josh Duggar, Victoria Cobb, Family Foundation of Virginia, Allison Howard, Concerned Women for America, E.W. Jackson, Norfolk, gay marriage, same-sex marriage, marriage equality, Virginia, gay news, Washington Blade

An anti-gay legal firm is calling on the U.S. Supreme Court to stay same-sex marriages in Virginia. (Photo courtesy of the Family Foundation of Virginia)

The court clerk defending Virginia’s ban on same-sex marriage filed a petition on Thursday with the U.S. Supreme Court calling on justices to block a lower court decision allowing gay couples to wed in the Old Dominion starting next week.

Alliance Defending Freedom, which is defending the ban on behalf of Prince William County Circuit Court Clerk Michèle McQuigg, made its case in a 26-page brief for why justices should overturn a decision from the U.S. Fourth Circuit Court of Appeals to refuse a stay on the same-sex marriages.

“Unless this Court issues the stay requested here and makes clear that the courts of appeals should stay their mandates in these cases, it is likely that other circuits will mistakenly follow the Fourth Circuit’s lead,” the brief states. “Yet that would invite needless chaos and uncertainty rather than facilitate the orderly and dignified resolution of a constitutional question of enormous national importance.”

The brief, signed by Alliance Defending Freedom senior counsel Byron Babione, argues the Supreme Court should grant a stay because justices are likely to consider take up a same-sex marriage case on appeal with a fair prospect of reversing lower court decisions overturning bans on gay nuptials.

Babione also makes the case that the lack of a stay would lead to harm and uncertainty, saying that’s what happened when a district court struck down Utah’s ban on same-sex marriage. Earlier decisions from the Supreme Court to stay same-sex marriages in Utah necessitate a stay should be put in place as well in the Virginia case, Babione writes.

“Without a stay, same-sex couples in Virginia would obtain marriage licenses only to have their validity become immediately suspect should this Court determine that the Constitution does not mandate genderless marriage,” Babione writes. “The effects of this uncertainty would extend beyond the couples who obtain marriage licenses. Many private and governmental entities, from employers to business establishments, would be placed in difficult situations as they are asked to recognize marriages of doubtful validity.”

The filing of the petition before the Supreme Court follows a decision by the Fourth Circuit to reject a similar request for a stay. In a 2-1 decision, a three-judge panel on the appeals court declined to stay pending appeal its ruling that affirmed Virginia’s ban on same-sex marriage violates the U.S. Constitution. Alliance Defending Freedom pledged to take up the matter with the Supreme Court soon after the Fourth Circuit decision was handed down.

Unless the Supreme Court intervenes, same-sex couples could start obtaining marriage licenses from clerks’ offices in Virginia after the Fourth Circuit issues the mandate on its decision, which is set to occur 8 am on August 21.

The petition from Alliance Defending Freedom was delivered 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 previously granted stays on similar decisions in favor of marriage equality.

In the lawsuit seeking marriage equality in Utah, Kitchen v. Herbert, the U.S. Supreme Court in January issued a stay on same-sex weddings already taking place in the state as a result of a district court ruling striking down the state’s ban on same-sex marriage. Additionally, in the case of Evans v. Utah, the Supreme Court issued a stay on state recognition of these 1,300 marriages after the U.S. Tenth Circuit Court of Appeals deemed Utah for the time being should consider them valid.

Shannon Minter, legal director for the National Center for Lesbian Rights, nonetheless said he sees room for the Supreme Court to deny a stay this time around in the Virginia case.

“A lot has changed since the Court issued a stay in Kitchen, which was the first district court decision in the entire country striking down a state marriage ban after Windsor,” Minter said. “There are now many other such decisions, in every corner of the nation. The Court could decide that a stay is no longer warranted.”

In the event the Supreme Court declines to issue a stay, the Virginia decision would become binding precedent in the Fourth Circuit. Minter said whether clerks in other Fourth Circuit states — West Virginia, North Carolina and South Carolina — would then have the authority to distribute marriage licenses to same-sex couples “would depend on the specifics of state law.”

“But whether immediately or with some short delay to get implementing orders, I expect that marriages would commence in those states very quickly,” Minter said.

The litigation seeking same-sex marriage in Virginia itself has already been appealed to the Supreme Court. Last week, Virginia Attorney General Mark Herring, who has refused to defend Virginia’s marriage law in court, filed an appeal on behalf of Janet Rainey, the Virginia Registrar of Vital Records, who was a defendant at the trial court. Alliance Defending Freedom has already pledged to file a similar appeal seeking to uphold the ban.

Brian Brown, president of the anti-gay National Organization for Marriage, is urging the Supreme Court to grant the stay while the litigation is under appeal.

“The 4th Circuit has wrongly rejected the request for a stay, and now it lies with the justices in Washington to ensure that this case can be appealed in an orderly and reasonable fashion without the spectacle of premature same-sex ‘marriages’ filling the news as an affront to the people of Virginia who voted overwhelmingly to define marriage as the union of one man and one woman,” Brown said.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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