Before the start of Labor Day weekend on Friday, opposing sides in the Utah, Oklahoma and Virginia marriage lawsuits — parties for marriage equality and against it — had submitted petitions for certiorari to the Supreme Court claiming their case was an appropriate vehicle to make a final decision on the issue. The latest filing means a total of eight petitions for three marriages cases before the court.
These cases are the most advanced because they’re the three among the more than 70 pending lawsuits throughout the country in which federal appeals courts have issued rulings.
The U.S. Tenth Circuit Court of Appeals determined in two separate decisions that Utah and Oklahoma’s bans on same-sex marriage were unconstitutional, while the U.S. Fourth Circuit Court of Appeals made the same determination for Virginia’s ban on same-sex marriage.
On Friday, the anti-gay legal group Alliance Defending Freedom filed on behalf of Prince William County Court Clerk Michele McQuigg a legal brief asking the Supreme Court to review the Fourth Circuit decision in the Virginia case.
In the 26-page brief, attorneys for Alliance Defending Freedom argue the Supreme Court should take up the Virginia case because McQuigg has been steadfast in her defense of excluding same-sex couples from marriage.
“Throughout this litigation, McQuigg alone has raised and defended all of Virginia’s compelling interests in regulating marriage as the union of a man and a woman,” the brief states. “Because this Court’s constitutional analysis must evaluate the Commonwealth’s interests in marriage, this Court would benefit from granting the petition of the party who has presented all of Virginia’s compelling interests in the challenged marriage laws.”
The brief argues that the Supreme Court should review the Fourth Circuit decision on the basis it allegedly ignored precedent set by the earlier cases, including Baker v. Nelson, a 1972 marriage equality that the high court refused to hear. In the event that the court decides to take up another case other than the Virginia lawsuit, the brief calls on the Supreme Court to hold its stay on the Fourth Circuit ruling until judgment is issued.
McQuigg’s petition joins the appeal that Virginia Attorney General Mark Herring, who’s refused to defend Virginia’s ban in court, filed on behalf of Virginia Registrar of Deeds Janet Rainey, as well as the petition filed by attorneys Ted Olson and David Boies, who are representing plaintiff same-sex couples in the case on behalf the American Foundation for Equal Rights, and yet another petition filed by the American Civil Liberties Union, Lambda Legal and Jennifer & Block LLP, who joined the case as respondents for same-sex couples in a class-action lawsuit.
On the day before the McQuigg filing, attorneys representing same-sex couples in the case seeking marriage equality in Utah, Herbert v. Kitchen, filed a similar petition before the court asking justices to take up that litigation to final determination on marriage equality.
In a 34-page filing, attorneys for the Salt Lake City-based Magleby & Greenwood LLC, the National Center for Lesbian Rights, Gay & Lesbian Advocates & Defenders and the law firm of Hogan Lovells make the case that the Utah litigation is the most appropriate vehicle for the Supreme Court.
“At stake in this case is the liberty of an entire class of Americans, who urgently need a ruling from this Court that they are able to marry and to have their marriages recognized on an equal basis with other citizens,” the filing states. “In the past year, lower courts around the country have correctly recognized that state laws prohibiting same-sex couples from marrying violate the Constitution. Yet because these rulings do not apply nationwide, same-sex couples continue to experience great uncertainty and serious harm.”
Apparently taking a dig at the Oklahoma case, which has standing issues, the brief says the Utah case “does not have the jurisdictional and procedural problems that have complicated review in the past.” And in an apparent dig at the Virginia case, in which state officials have refused to defend the law, the brief notes that Utah state officials have authority over county officers and have “consistently defended” the marriage ban in court.
The filing from these attorneys joins the earlier petition filed before the court in the case by Utah Attorney General Sean Reyes, whose filing was the first petition asking the Supreme Court to take up a marriage case since the ruling against the Defense of Marriage Act.
Earlier this week, attorneys from the Oklahoma City-based Holladay & Chillton PLLC filed a petition before the Supreme Court on behalf of plaintiff same-sex couples in the Oklahoma case known as Bishop v. Smith. Alliance Defending Freedom, which is defending Oklahoma’s ban on same-sex marriage on behalf of Tulsa County Court Clerk Sally Howe Smith, had earlier filed on appeal before the Supreme Court.
Each of the parties involved in these cases are filing petitions before the Supreme Court amid the perception they’re battling to be part of a final, nationwide ruling on marriage equality. Whoever is behind such a lawsuit will get credit for being part of the most significant gay rights case in history.
Although the Supreme Court is under no obligation to take up any of the cases, observers expect justices to take up a case and make a ruling by the middle of next year. The first conference for the next term of the Supreme Court is set for September 29. Justices could decide which case to take up at that time, or wait for a subsequent conference to choose a lawsuit.