The U.S. Supreme Court agreed to a stay Wednesday on a federal appeals court’s ruling against Virginia’s ban on same-sex marriage, blocking same-sex marriages from taking place this week in the Old Dominion.
Without explanation, the court announced in a single-page order it has stayed the ruling by the U.S. Fourth Circuit of Appeals in Schaefer v. Bostic, which affirmed Virginia’s prohibition on same-sex marriage is unconstitutional.
Although Chief Justice John Roberts is responsible for stay requests in the Fourth Circuit, the order indicates he referred the matter to the entire court. The vote by the Supreme Court on the decision isn’t included in the order.
The court adds that if the court ends up declining a writ of certiorari to hear the case, the stay will terminate automatically. But if the court decides to hear the case, the stay will continue until judgment is issued.
Had the court declined to issue a stay, clerks’ offices in Virginia could have started distributing marriage licenses to same-sex couples at 8 am on Thursday. That’s when the Fourth Circuit was set to issue the mandate on its decision.
Evan Wolfson, president of Freedom to Marry, said the stay decision from the Supreme Court “underscores of the urgency” of a national resolution in favor of marriage equality.
“Americans across the country are being deprived of the freedom to marry and respect for their lawful marriages, as well as the tangible protections and precious dignity and happiness that marriage brings,” Wolfson said. “It is time for the Supreme Court to affirm what more than thirty courts have held in the past year: marriage discrimination violates the Constitution, harms families, and is unworthy of America.”
The Supreme Court halted same-sex marriages in Virginia after Prince William County Circuit Court Clerk Michèle McQuigg, who’s defending the state’s ban on same-sex marriage in court, requested the stay from justices. Attorneys representing same-sex couples in the lawsuit — both the Bostic and the Harris plaintiffs — had asked the court to decline the stay, but the Commonwealth of Virginia on behalf of Virginia Registrar of Deeds Janet Rainey filed a brief agreeing that a stay should be put in place.
Prior to the announcement from the Supreme Court, the anti-gay legal firm Alliance Defending Freedom, which is defending Virginia’s marriage ban on behalf of McQuigg, followed up with a response insisting that a stay on the Fourth Circuit decision is necessary to prevent harm to the state.
“The balance of the harms thus reduces to this: the Bostic and Harris Respondents have identified potential harms (e.g., a delay in obtaining state recognition of their relationships) that will result only if they ultimately prevail in this case, whereas Clerk McQuigg and Registrar Rainey have identified certain harms (e.g., enjoining a duly enacted state constitutional provision) that will result as soon as the Fourth Circuit issues its mandate,” writes senior counsel Byron Babione. “That balance tips sharply in favor of staying the Fourth Circuit’s mandate.”
The litigation seeking same-sex marriage in Virginia itself has already been appealed to the Supreme Court. Earlier this month, Virginia Attorney General Mark Herring, who has refused to defend Virginia’s marriage law in court, filed an appeal on behalf of the state. Alliance Defending Freedom has already pledged to file a similar appeal seeking to uphold the ban.
Following the decision from the Supreme Court, Herring said in a conference call with reporters he wants an expedited resolution to the case, which is why he already petitioned the Supreme Court to review the Fourth Circuit’s decision against the marriage law.
“It’s still difficult to expect Virginian folk to wait to exercise what I believe is a fundamental right, especially when we are so close to our goal, and that is why I’ve been pushing to expedite and get a ruling from the Supreme Court that will definitively answer the constitutional questions about marriage equality and permanently protect the families of Virginia’s same-sex couples,” Herring said.
Asked by the Washington Blade to respond to critics who would say it’s disingenuous to call Virginia’s ban on same-sex marriage unconstitutional on one hand, but support a stay on a ruling against it on the other, Herring emphasized he’s pushing for a speedy resolution to the case in favor of same-sex couples.
“I support and will continue to fight for equal treatment under the law, and I’m going to continue to do that,” Herring said. “But at the same, I recognize that until the Supreme Court makes its decision that outcome is not certain. So, to those who are tired of their state not treating them fairly and equally, I am working as hard as I can to fight for equality. I worked for it in the district court, I fought for it in the Fourth Circuit and I’ll fight for it in the Supreme Court.”
The American Foundation for Equal Rights announced after the stay decision was announced that it’ll file a brief in support of the petition already filed by Virginia Attorney General Mark Herring calling on the Supreme Court to take up the case.
“The federal court system agrees, the majority of Americans agree, and the President of the United States agrees that it is time this country treats its same-sex couples and their children just the same as all other loving families,” said plaintiffs’ lead co-counsel David Boies of Boies, Schiller & Flexner, LLP. “We are confident that when the Supreme Court reviews the Bostic case, it too will agree and end the flagrant injustice of segregating Americans based on sexual orientation.”
The decision to block the same-sex marriages from occurring overturns a decision from the Fourth Circuit, which refused to grant a stay on its decision striking down Virginia’s marriage ban.
But the high court’s decision to stay same-sex marriages in Virginia is consistent with other stay decisions it has issued in other states following rulings in favor of marriage equality.
In January, the court issued a stay on same-sex marriages taking place in Utah as a result of a district court ruling in the case of Kitchen v. Herbert striking down the state’s ban on gay nuptials. Additionally, the court halted state recognition of these 1,300 marriages in Evans v. Utah after the U.S. Tenth Circuit Court of Appeals deemed the state for the time being should consider them valid.
Chris Gasek, senior fellow at the anti-gay Family Research Council, claimed the Supreme Court’s decision to stay same-sex marriages in Virginia as a victory for opponents of marriage equality.
“Today, the Supreme Court put a hold on the Fourth Circuit ruling, allowing Virginia’s law to continue to be enforced while the Fourth Circuit’s opinion is appealed,” Gasek said. “We are glad that the Court saw the wisdom of slowing down the judicial process in this instance so that marriages will not be entered into that would later have to be nullified. Such irresponsible mayhem has been witnessed in Utah, and it resulted in legal chaos for state residents and state officials.”