The Washington Post

Federal judges refuse to stay decision striking Va. same-sex marriage ban

Spencer Geiger, left, and Carl Johansen show support for same-sex marriage outside the Walter E. Hoffman U.S. Courthouse on Feb. 4, 2014, in Norfolk, Va. (Jay Paul/Getty Images)

A federal appeals court panel refused Wednesday to delay its decision striking Virginia’s ban on same-sex marriage, which means it will soon be up to the Supreme Court to decide whether gay marriages can begin in the commonwealth next week.

The same panel of the U.S. Court of Appeals for the 4th Circuit that decided July 28 that Virginia’s ban is unconstitutional rejected a request to stay its order until the high court decides whether to accept an appeal.

With that action, the commonwealth could start issuing marriage licenses Aug. 20.

But those defending Virginia’s voter-approved ban said they will ask the Supreme Court to step in before then, and there is reason to believe they will be successful.

The Supreme Court justices, without noted dissent, have already 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. The order indicated that the justices want more lower courts to weigh in on the legal issue before giving what might seem to be even implied approval of the federal judge’s decision that the bans cannot stand.

Same-sex marriage status in the U.S., state-by-state

“Because the 4th Circuit chose not to place a hold on its decision, as other courts — including the U.S. Supreme Court — have done in nearly identical cases, we intend to ask the high court to do so in this case before the 4th Circuit’s mandate goes into effect,” said Byron Babione, senior counsel for the Alliance Defending Freedom.

The conservative legal organization represents Prince William County Clerk of Court Michèle B. McQuigg, who is defending the law since the state’s Democratic leadership has chosen not to.

“We trust the Supreme Court will grant our request in order to ensure an orderly and dignified resolution of this important constitutional question,” Babione said.

The request will go first to Chief Justice John G. Roberts Jr., who receives emergency requests from the 4th Circuit, and then is likely to be referred to the full court. The circuit covers Virginia, Maryland, North Carolina, South Carolina and West Virginia. Only Maryland has authorized same-sex marriage.

Proponents of same-sex marriage said the 4th Circuit panel was right not to find a reason to stay its decision.

“There is no doubt that Virginia is ready for the freedom to marry,” said James Parrish, executive director of Equality Virginia. “Marriage validates the commitment couples make to one another and, if the Supreme Court doesn’t intervene, achieving marriage equality in Virginia will be a tremendous step forward.”

The appeals court panel did not explain its reasoning in denying the stay request. The order simply stated: “Upon consideration of submissions relative to the motion to stay mandate, the court denies the motion.”

Denying the motion were the two judges who prevailed in ruling the ban was unconstitutional: Circuit Judges Henry F. Floyd and Roger L. Gregory. Dissenting Circuit Judge Paul V. Niemeyer would have found the ban reasonable and would have granted the stay.

Lower courts face a higher standard in deciding whether to stay decisions than does the Supreme Court. Still, many courts have found state bans unconstitutional since the Supreme Court in 2013 struck down part of the Defense of Marriage Act that said the federal government would recognize marriage only between a man and a woman. Those decisions are on hold in places where they are being appealed.

“It’s shocking that the 4th Circuit has introduced chaos to Virginia where other appellate courts have recognized that the final decision will likely be made by the Supreme Court,” said Victoria Cobb, president of the Family Foundation of Virginia.

Del. Robert G. Marshall (R-Prince William), an author of the Virginia Marriage Amendment approved by voters in 2006, said the decision and refusal of a stay showed a “radical hubris.”

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006.

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