Is Virginia's Other Marriage Case On Hold?

While the news has been full of coverage of the ruling in Bostic v. Rainey, there has been far less coverage of Virginia's other lawsuit challenging Virginia's same sex marriage ban.  The case of Harris v. Raney - which has class action certification - is pending in the U.S. District Court for the Western District of Virginia.   Technically, the ruling in Bostic is not controlling for the Harris case, but as the Washington Post and Richmond Times Dispatch are reporting the judge in Harris is pondering whether or not to delay ruling in that case pending an appeal of the ruling in Bostic that found the Marshall-Newman Amendment to be unconstitutional.  Here are highlights from the Washington Post article:

A Virginia federal judge said Wednesday that he has not decided whether he needs to rule on a class-action lawsuit seeking the right for same-sex couples in the state to marry, since another federal judge already has struck down the state’s ban.

U.S. District Judge Michael F. Urbanski asked lawyers at a hearing in Harrisonburg whether he should put the case in front of him on hold. U.S. District Judge Arenda L. Wright Allen ruled last Thursday in a separate case filed in Norfolk that the law violates constitutional protections of due process and equal protection.

Wright Allen stayed her decision, and same-sex marriages cannot take place at least until her ruling is reviewed by the U.S. Court of Appeals for the 4th Circuit in Richmond. Wright Allen is a judge in Virginia’s eastern district, while Urbanski is in the western district.

Joshua A. Block, a lawyer for the American Civil Liberties Union representing some of the plaintiffs, said he urged Urbanski to add his voice to the debate. The appeals court “will benefit from having more courts weigh in,” Block said.

Urbanski said he would make his decision “in due course” but would not hold oral arguments either way. The lawyers agreed arguments were unnecessary and said Urbanski could rely on briefs in his own case and arguments made before Wright Allen earlier this month if he decides to rule on, rather than postpone, the case.

The cases are in a peculiar stance since November’s elections, in which Democrats won Virginia’s statewide offices. Unlike their Republican predecessors, Gov. Terry McAuliffe and Attorney General Mark R. Herring support same-sex marriage. Herring created a political storm in Richmond when he announced last month that he has concluded that Virginia’s ban is unconstitutional and that he would not defend it.

In the Norfolk case, Bostic v. Rainey, two circuit clerks have retained lawyers who defended the Virginia ban. But in the Harrisonburg case, Harris v. Rainey, Staunton Circuit Clerk Robert E. Thomas has taken no position on the law’s constitutionality.

Virginia Solicitor General Stuart Raphael told Urbanski he could rely on the state’s previous defense of the constitutional amendment as well as the defense from lawyers in the Norfolk case to make sure the case was properly briefed.
[F]ederal judges in Utah and Oklahoma struck down bans in those states, just as Wright Allen has done, and judges in Ohio and Kentucky have said those states must recognize same-sex marriages performed elsewhere. Additionally, the Supreme Court’s reasoning was used by the highest state courts in New Jersey and New Mexico to allow same-sex marriage there.

The next step in the legal process will be come at the appellate level. The U.S. Court of Appeals for the 10th Circuit in Denver will review the Utah and Oklahoma decisions. Raphael said that if all proceeds as scheduled in Virginia, the first briefs could be filed with the 4th Circuit next month.

Those could lead to the Supreme Court receiving the issue in time for its term that begins in October.