Virginia Gay Marriage - Now a Waiting Game with SCOTUS

The plaintiffs in Bostic v. Rainey have filed their responses to the Motion for Stay of Mandate filed by the Christofascist backed Clerk of the Circuit Court for Prince William County, Michele McQuigg, with the United States Supreme Court ("SCOTUS").  Unless a stay is granted, same sex marriages will begin on Thursday Morning and marriages such as that of mine and my husband will become recognized in Virginia.  Sadly, Virginia Attorney General Mark Herring, who is not defending Virginia's anti-gay animus motivated Marshall-Newman Amendment  asked SCOTUS to grant a stay pending a full hearing of the case by SCOTUS.  Personally, I would prefer that no stay be granted.  With the Commonwealth of Virginia not defending the ban, the Court should ignore the request of McQuigg - who I hope future generations will view will disgust akin to that reserved fro the segregationists of the past - and her hate merchant allies.   The Washington Blade  looks at the posture of the pending stay request.  Here are highlights:

The parties behind the lawsuit seeking same-sex marriage rights in Virginia were split in response to a request from Prince William County Clerk Michele McQuigg asking the Supreme Court to stop the marriages from taking place as litigation continues.

Attorneys representing plaintiff same-sex couples in the case — on one hand, the legal dream team of Ted Olson and David Boies, on the other, Lambda Legal, the American Civil Liberties Union and ACLU of Virginia — say the court should allow the marriages to begin in Virginia following a decision by the U.S. Fourth Circuit Court of Appeals against the state’s ban on same-sex marriage.

But the State of Virginia — even though it’s not defending the marriage ban in court — says a stay should be issued because harm will be caused either way. The case is known as Schaefer v. Bostic.

If the Supreme Court denies a stay, same-sex marriages could begin in Virginia as soon as Thursday at 8 a.m. That’s when the U.S. Fourth Circuit Court of Appeals is set to issue the mandate on its earlier decision against the state’s marriage law. 

Olson and Boies, who are representing plaintiff same-sex couples in the case on behalf of the American Foundation for Equal Rights, argue in their 20-page brief that a stay would “prolong the unconstitutional deprivation” of the right of same-sex couples to marry.   “The Fourth Circuit’s decision directly implicates the rights of tens of thousands of gay and lesbian Virginians whose fundamental right to marry has been denied by the Commonwealth of Virginia,” the lawyers write.

Meanwhile, Lambda Legal, the ACLU and the ACLU of Virginia make a similar case in a separate 23-page filing, saying a stay would cause harm to same-sex couples. These groups represent a certified class in the lawsuit that includes all Virginia same-sex couples, including Joanne Harris and Jessica Duff, who are named plaintiffs in the case.

“The certified class represented by the Harris Respondents consists of approximately 14,000 same-sex couples, who will suffer irreparable harm if the mandate is stayed,” the brief states. “While this case remains pending in this Court, children will be born, people will die, and loved ones will fall unexpectedly ill. The substantive legal protections afforded by marriage can be critical, if not life-changing, during such major life events and personal crises.”

The brief is signed by Paul Smith, a co-counsel in the case and partner at Jenner & Block LLP. He’s responsible for successfully litigating the case of Lawrence v. Texas before the Supreme Court, which resulted in a 2003 decision striking down state sodomy laws.

Both briefs make similar arguments that a stay on the Fourth Circuit decision should be denied because there is no reasonable probability the Supreme Court would reverse the ruling; the county clerk defending the law won’t be irreparably harmed without a stay. Moreover, the lawyers both argue that an earlier stay the Supreme Court put in place in Utah isn’t binding on the Virginia lawsuit.

“Unlike in Kitchen, where the State of Utah continues to defend the constitutionality of its prohibition on marriage between individuals of the same sex, the Commonwealth has conceded in this case that Virginia’s Marriage Prohibition is unconstitutional, which conclusively demonstrates that the Commonwealth has no legitimate interest in leaving these discriminatory measures in place pending further appeal,” Olson and Boies write. “The Commonwealth’s concession — together with the unbroken line of authority invalidating state marriage bans since the Court’s stay ruling — makes the stay analysis in this case materially different from the one in Kitchen.

Despite agreeing that a stay should be put in place, the Virginia Attorney General issued a statement on Monday announcing that it’s preparing with the governor’s office and client state agencies in the event that the Supreme Court does not stay the Fourth Circuit’s decision before the order takes effect. This includes drafting an updated marriage license application through the State Registrar of Vital Records, the statement says.