Defenders of Virginia’s laws prohibiting same-sex marriage asked the Supreme Court on Thursday to put on hold a lower court’s ruling that would allow gay marriages to begin in the commonwealth next week.
Lawyers defending the ban enacted by voters in 2006 said emergency action was needed after a panel of the U.S. Court of Appeals for the 4th Circuit refused to further delay its ruling that the ban is unconstitutional.
The stay request was filed by lawyers for the Alliance Defending Freedom, a conservative legal organization that is representing Prince William County Clerk of Court Michèle B. McQuigg, who intervened in the case to defend the law.
Virginia Attorney General Mark Herring (D) agreed with challengers that the ban is unconstitutional and urged that it be overturned. But the stay request said Herring also opposed allowing the marriages to begin before the Supreme Court decides whether to review the appeals court’s decision.
The application said that allowing marriages now “would invite needless chaos and uncertainty rather than facilitate the orderly and dignified resolution of a constitutional question of enormous national importance.”
The request was filed with Chief Justice John G. Roberts Jr., who is the justice designated to hear emergency matters from the 4th Circuit in Richmond. He will likely refer it to the rest of his colleagues, as has been the court’s practice in similar cases.
Without Supreme Court intervention, the appeals court said its order will become effective next Thursday at 8 a.m. Marriage licenses could be issued after that.
There is reason for those requesting the Supreme Court’s action to be optimistic.
The justices, without noted dissent, have stopped same-sex marriages in Utah after judges there found that state’s ban unconstitutional and refused to issue a stay. And the court later put on hold a judge’s order that the state must recognize the 1,000 or so unions that took place between the decision and the court’s ruling that the marriages should stop.
Utah, Virginia and Oklahoma have all asked the Supreme Court to review decisions striking down their bans on same-sex marriage, and the justices could decide as soon as late September whether they will accept one or more of the cases.
On July 28, the appeals court panel in a 2 to 1 vote said Virginia’s ban on same-sex marriage prohibits gay couples “from participating fully in our society, which is precisely the type of segregation” that the Constitution does not allow.
It was typical of a string of federal court decisions finding such bans unconstitutional following the Supreme Court’s 2013 ruling in U.S. v. Windsor. The court struck down a part of the Defense of Marriage Act that provided a federal definition of marriage as only between a man and a woman.