August 18, 2014 at 5:39 pm EST | by Chris Johnson
Plaintiff couples, state split on stay of Va. same-sex marriages
David Boies, Ted Olson, gay marriage, same-sex marriage, marriage equality, gay news, Washington Blade

David Boies and Ted Olson are asking the Supreme Court to deny a stay request on Virginia same-sex marriages. (Washington Blade file photo by Michael Key)

The parties behind the lawsuit seeking same-sex marriage rights in Virginia were split in response to a request from Prince William County Clerk Michele McQuigg asking the Supreme Court to stop the marriages from taking place as litigation continues.

Attorneys representing plaintiff same-sex couples in the case — on one hand, the legal dream team of Ted Olson and David Boies, on the other, Lambda Legal, the American Civil Liberties Union and ACLU of Virginia — say the court should allow the marriages to begin in Virginia following a decision by the U.S. Fourth Circuit Court of Appeals against the state’s ban on same-sex marriage.

But the State of Virginia — even though it’s not defending the marriage ban in court — says a stay should be issued because harm will be caused either way. The case is known as Schaefer v. Bostic.

If the Supreme Court denies a stay, same-sex marriages could begin in Virginia as soon as Thursday at 8 a.m. That’s when the U.S. Fourth Circuit Court of Appeals is set to issue the mandate on its earlier decision against the state’s marriage law. Last week, a three-judge panel on the Fourth Circuit determined that a stay on Virginia same-sex marriages is unwarranted as the litigation is appealed.

Olson and Boies, who are representing plaintiff same-sex couples in the case on behalf of the American Foundation for Equal Rights, argue in their 20-page brief that a stay would “prolong the unconstitutional deprivation” of the right of same-sex couples to marry.

“The Fourth Circuit’s decision directly implicates the rights of tens of thousands of gay and lesbian Virginians whose fundamental right to marry has been denied by the Commonwealth of Virginia,” the lawyers write.

Meanwhile, Lambda Legal, the ACLU and the ACLU of Virginia make a similar case in a separate 23-page filing, saying a stay would cause harm to same-sex couples. These groups represent a certified class in the lawsuit that includes all Virginia same-sex couples, including Joanne Harris and Jessica Duff, who are named plaintiffs in the case.

“The certified class represented by the Harris Respondents consists of approximately 14,000 same-sex couples, who will suffer irreparable harm if the mandate is stayed,” the brief states. “While this case remains pending in this Court, children will be born, people will die, and loved ones will fall unexpectedly ill. The substantive legal protections afforded by marriage can be critical, if not life-changing, during such major life events and personal crises.”

The brief is signed by Paul Smith, a co-counsel in the case and partner at Jenner & Block LLP. He’s responsible for successfully litigating the case of Lawrence v. Texas before the Supreme Court, which resulted in a 2003 decision striking down state sodomy laws.

Both briefs make similar arguments that a stay on the Fourth Circuit decision should be denied because there is no reasonable probability the Supreme Court would reverse the ruling; the county clerk defending the law won’t be irreparably harmed without a stay. Moreover, briefs both argue that an earlier stay the Supreme Court put in place in Utah isn’t binding on the Virginia lawsuit.

Olson and Boies make the case that the situation is different between the lawsuit seeking marriage equality in Utah, Kitchen v. Herbert, and the lawsuit seeking marriage equality in Virginia because the attorneys general have taken different approaches to the litigation.

“Unlike in Kitchen, where the State of Utah continues to defend the constitutionality of its prohibition on marriage between individuals of the same sex, the Commonwealth has conceded in this case that Virginia’s Marriage Prohibition is unconstitutional, which conclusively demonstrates that the Commonwealth has no legitimate interest in leaving these discriminatory measures in place pending further appeal,” Olson and Boies write. “The Commonwealth’s concession — together with the unbroken line of authority invalidating state marriage bans since the Court’s stay ruling — makes the stay analysis in this case materially different from the one in Kitchen.”

That same argument isn’t articulated by Virginia Solicitor General Stuart Raphael, who takes a different approach in the 19-page filing he submitted before the Supreme Court, saying harm may occur either way and a stay on Virginia same-sex marriages is the best option.

“Irreparable harm is threatened whichever way the Court decides the stay request, although determining if the harm is irreparable depends on whether Virginia’s ban is unconstitutional,” Raphael writes. “Under these circumstances, the balance of hardships favors a stay. The unintended consequences and injury to third parties if this Court were to permit the district court’s injunction to take effect prematurely and later uphold Virginia’s ban are greater than the injury to the named plaintiffs if the stay is granted but the ban is later invalidated.”

The state takes this position against same-sex marriages at this time in Virginia even though Attorney General Mark Herring has refused to defend Virginia’s marriage ban in court on the grounds that the law is unconstitutional. Herring has already petitioned the court to take up the case on its merits on behalf of Janet Rainey, the Virginia Registrar of Vital Records.

But each of the parties in the case makes the same arguments that the Supreme Court should treat the stay application filed by McQuigg as a petition for a writ of certiorari and take up the case in an expedited fashion. Although McQuigg has pledged to take up the litigation with the Supreme Court in terms of merits, she has yet to take that action.

Raphael notes that both McQuigg and Rainey believe the courts must provide the definitive answer on whether Virginia’s ban on same-sex marriage, approved by voters in 2006, is unconstitutional.

“Rainey disagrees with McQuigg about how the question presented should be answered,” Raphael writes. “But they agree that this Court alone can provide a definitive answer, and that it should grant certiorari to do that. There is no need to require McQuigg to file a cross-petition for certiorari when her stay motion serves the same purpose. With the completion of briefing on this motion, the table is set and the necessary participants are present.”

Despite agreeing that a stay should be put in place, the Virginia Attorney General issued a statement on Monday announcing that it’s preparing with the governor’s office and client state agencies in the event that the Supreme Court does not stay the Fourth Circuit’s decision before the order takes effect. This includes drafting an updated marriage license application through the State Registrar of Vital Records, the statement says.

The parties are responding to a stay request that the anti-gay legal firm Alliance Defending Freedom filed on Thursday before the Supreme Court on behalf of McQuigg, who’s defending Virginia’s same-sex marriage ban against litigation seeking to overturn it. Among other reasons, the legal firm argued that a stay would be consistent with earlier decisions from the Supreme Court, and withholding a stay would cause harm to the state.

That stay request is pending before Chief Justice John Roberts, who’s responsible for stay requests within the Fourth Circuit. Roberts can decide the issue on his own, or refer the matter to the entire court. On Friday, Roberts requested a response from plaintiffs to the stay request by Monday at 5 p.m.

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

  • El Dorado

    Alliance Defending Freedom? If that isn’t adding insult to injury what is? What nerve this group has calling it’s self a group defending freedom when it tries to deprive gay and lesbian couples their freedom to marry!

    They say marriage equality will cause irreparable damage…what a farce! The damage is your refusal to accept the inevitable and depriving couples of their just right to legal recognition!

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