Thomas Shuttleworth RIP: Virginia Marriage Case Attorney Dies

I have known the senior members of the Shuttleworth, Ruloff, Swain, Haddad & Morecocklaw firm, the firm that launched the challenge to Virginia's anti-gay animus motivated Marshall-Newman Amendment on behalf of fiends, Tim Bostic and Tony London, since the early 1980's.  We all originally belonged to the same law firm which in later years became a part of the Richmond based Williams Mullen mega firm.  Yesterday, Thomas Shuttleworth passed away after a battle with Parkinson's disease.  His obituary can be found here in the Virginian Pilot.    Back on May 15, 2014,  HRBOR's May Third Thursday event hosted by the law firm Shuttleworth, Ruloff, Swain, Haddad & Morecock.    It was moving hearing Tom speak at the event and I was very touched when he gave me a big hug.  I feel lucky to have known Tom. A piece in the Daily Press reviewed the beginnings of the lawsuit that brought marriage equality to Virginia.  Here are excerpts:

At their Norfolk home that June night, Bostic and London considered the pros and cons of pushing the issue in court. They came to their decision within 30 minutes, Bostic said. Just then, he said, a younger and less established gay couple walked past their home.

"If Tony and I wouldn't do it, who will?" Bostic said.

Meanwhile, Ruloff talked to Tom Shuttleworth, the senior partner at the Virginia Beach firm, Shuttleworth, Ruloff, Swain, Haddad & Morecock. Shuttleworth was quickly on board. "It's going to be a long, hard challenge, but if they're up for it, we're up for it," he said.

Over the next couple weeks, one of the Virginia Beach firm's associates, Charles Lustig — whom Ruloff called the law firm's resident "constitutional scholar" — researched the issue and drafted the lawsuit.

On July 18, 2013, Lustig walked into the U.S. District Court in Norfolk and handed the complaint to a counter clerk. Former Gov. Bob McDonnell, former Attorney General Ken Cuccinelli and Norfolk Circuit Court Clerk George E. Schafer III were named as defendants.

Lustig wrote: "By denying those individuals the same 'marriage' designation afforded to opposite-sex couples … the Commonwealth of Virginia is stigmatizing gays and lesbians, as well as their children and families, and denying them the same dignity, respect, and stature afforded officially recognized opposite-sex family relationships."

A week after the suit was filed, a Washington, D.C.-based lawyer, Matt McGill, learned of the case through news reports.

McGill works with Gibson Dunn & Crutcher, an international law firm based in Los Angeles that was heavily involved in the push to legalize same-sex marriage in California. McGill then called Erik Porcaro, a childhood friend — and an attorney with the Virginia Beach law firm.

Bostic said he found it amazing that the lawyers involved on the plaintiffs' side are mostly "older straight white men."

"They don't have any dog in this fight," he said. "That they're willing to put themselves out there and support us, it's kind of awe-inspiring. It's humbling."

And yes, the husband and I were there when Tim and Tony got married thanks to Tom Shuttleworth's willingness to put himself out there for what was right.  Tom, you will be missed.  My condolences to Tom's family. 

Virginia to Pay $520,000 to Plaintiffs' Attorneys in Same-Sex Marriage Case

My former law partners, Tom Shuttleworth and Bob Ruloff

Across the country we see Republican elected officials - usually bent on prostituting them selves to Christofascists in the GOP base - opposing same sex marriage and filing one motion and appeal after another seeking to stop the inevitable.  Not only does this run up huge wastes in government funds and legal staff time, but when the opponents of marriage equality ultimately lose, the state gets hit with paying the legal fees of the plaintiffs who had been discriminated against all because the "godly folk" seek to inflict their beliefs on all of society.  And these legal fees can be high as demonstrated by the fees Virginia must pay to the attorneys for the plaintiffs in Bostic v. Rainey: $520,000 better spent on the needs of Virginia's citizens.  The Virginian Pilot has details:

Virginia will pay $520,000 to the lawyers for two same-sex couples who successfully challenged the state's gay marriage ban.

The settlement agreement was filed Thursday in U.S. District Court in Norfolk. The attorneys had sought more than $1.7 million.

The law firm Gibson, Dunn & Crutcher will receive $459,000. Shuttleworth, Ruloff, Swain, Haddad & Morecock will receive $61,000.

Court papers show that attorneys logged 2,372 hours on the case. Their fees will be paid by the state Department of Treasury's Division of Risk Management.

U.S. District Judge Arenda Wright Allen declared Virginia's same-sex marriage ban unconstitutional last February. A federal appeals court upheld the decision, and the U.S. Supreme Court refused to review the case.

I hope Victoria Cobb and the hate merchants at The Family Foundation are happy with what their religious based anti-gay animus has cost the state.

Federal Court Could Rule On South Carolina Marriage Case By November 3rd

It has been several weeks since the U.S. Court of Appeals for the 4th Circuit's ruling striking down Virginia's bans on same sex marriage was tacitly affirmed by the United States Supreme Court and by extension, the constitutionality of such bans in other states within the 4th Circuit were likewise invalidated.  Of the states within the 4th Circuit, only South Carolina has to date refused to concede that its state sponsored discrimination is headed to the trash heap of history.  This refusal to accept binding precedent may soon come to an end as U.S. District Judge Richard Gergel is poised to possible rule as early as Nov. 3, 2014, in a case filed in Charleston.  The Post and Courier has details.  Here are highlights:

A lawsuit filed by two Charleston women seeking to bring gay marriage to South Carolina will move more quickly after a federal judge on Friday denied an attorney's request for extra time to file responses and after attorneys agreed not to pursue hearings that could have delayed the case. 

That means U.S. District Judge Richard Gergel could rule as early as Nov. 3 in a lawsuit filed last week by Charleston County Councilwoman Colleen Condon and her partner, Nichols Bleckley. They contend the state must allow them to marry following the U.S. Supreme Court's Oct. 6 refusal to review an appellate case overturning Virginia's gay marriage ban. 

Late Wednesday, Bleckley and Condon requested a temporary injunction prohibiting state officials from enforcing the state's constitutional ban on gay marriage. That would open the state's doors to same-sex marriages. 

Gergel denied a verbal request from a state Attorney General lawyer to extend by three days a Nov. 3 deadline to file responses to the couple's injunction request.  "The plaintiff in this case has asserted irreparable injury" due to being denied a marriage license, Gergel said.  "They are entitled to an expeditious review," he added.

If Gergel issues the injunction, it would override the S.C. Supreme Court's stay. "A decision by my court would rule here," Gergel said. 

Moving forward, Gergel requested that attorneys address any substantial differences between South Carolina and Virginia laws that they believe could make the Virginia challenge to its same-sex marriage ban - and, in turn, the U.S. Supreme Court's action - inapplicable here.

The U.S. Supreme Court then let that [4th Circuit] ruling stand, which in effect opened the doors to gay marriages in all five states under the appellate court's jurisdiction. South Carolina is the only one of those states still prohibiting gay marriages. 

Personally, I would argue that the attorneys representing the sate should face sanctions if they cannot differentiate the South Carolina and Virginia bans - something I doubt can be done.  The sole agenda of the Attorney General's office is to delay and impede the inevitable.

What IF SCOTUS R Rejects the Same-Sex Marriage Appeals?

The Bostic plaintiffs

There continues to be much breathless watching among LGBT rights groups - and among anti-gay hate groups - to see whether the United States Supreme Court will take one or more of the same sex marriage case appeals from the U.S. Circuit Courts of Appeal that have struck down state gay marriage bans.  With the Court still shifting through the piles of appeals that have been filed, it may be days or weeks before we know with certainty what the Court will do.  But, as a noted in a previous blog, the Court will have to do something: either take one or more of the cases or reject the appeal which will by default affirm the Court of Appeals rulings.  A piece in th Virginian Pilot looks at this latter possibility.  Here are excerpts:

The fastest and surest path to marriage for same-sex couples in some parts of the United States would be for the Supreme Court to surprise everyone and decline to get involved in the issue right now.

A decision by the justices to reject calls from all quarters to take up same-sex marriage would allow gay and lesbian couples in Indiana, Oklahoma, Utah, Virginia and Wisconsin to begin getting married almost immediately. Rulings in their favor have been put on hold while the Supreme Court considers their cases.

And if the high court leaves those rulings in place, same-sex couples almost certainly would win the right to marry in six other states in short order because those states — Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming — would be bound by the same appeals court decisions.

That would bring to 30 the number of states where same-sex marriage is legal, plus the District of Columbia.

Yet almost everyone who follows the issue for a living or otherwise thinks the Supreme Court will step in and decide gay marriage cases this term. The cases were on the agenda when the justices met in private Monday to decide new cases to hear this term. The court could announce a decision as early as this week.

If the court were to reject the appeals, it would leave untouched the laws in the other 20 states that still enforce same-sex marriage bans.

Both sides in the dispute also say the justices have an obligation to settle an issue of such national importance, not abdicate that responsibility to lower court judges. Opting out of hearing the cases would leave those lower court rulings in place.

Justice Ruth Bader Ginsburg appeared to be addressing that concern when she said in July that the court would not duck the issue, as it did for years with bans on interracial marriage.

Yet more recently, at a forum in Minnesota, Ginsburg suggested the court might refrain from taking any action unless an appeals court were to uphold a same-sex marriage ban, which would create a split among appeals courts that typically triggers Supreme Court review.

The take away?  For now we wait, but here in Virginia, a failure of the Court to take the appeal in the Bostic case would make same sex marriage a reality in Virginia very quickly.  

What Will The Supreme Court’s Marriage Choice Be?

Today the justices of the U.S. Supreme Court met in a private closed door session to consider which  which cases to take and decide from the thousands of petitions for certiorari that have been filed with the Court.  Among those petitions for certiorari are a number of gay marriage case on appeal from  various U. S. Courts of Appeal all of which to date have invalidated state bans on same sex marriage.  Numerous bloggers and pundits have been speculating and "reading the tea leaves" as to what cases, if any the justices will pick to decide. The justices have numerous options before them and at this point, no one can say with absolute assurance what will occur.  However, should the Court decline to take any of the marriage case appeals, it will have to by default affirm the decisions of the Courts of Appeal and, if that is the result, release the current stays of the lower court rulings.  Doing absolutely nothing is, in effect, not an option.  They either take the appeal or they by default affirm the lower court ruling.  This latter course would as a result make gay marriage legal in the states within the applicable Court of Appeals districts.  A piece in The New Yorker has as good of an examination of the situation as any.  Here are highlights:

Legal shifts, especially in constitutional rights, often develop in the Supreme Court at a glacial pace, the magnitude of change perceptible only in hindsight.  That is no longer true of marriage equality. On Monday, the Court considers whether to hear one or more cases during its upcoming term that would determine the issue in all fifty states. History is in motion.

The court’s first preliminary conference of the term is a closed-door session at which only the Justices are present, and during which they choose which cases to decide of the thousands of petitions for certiorari, or consideration, they receive each year. The Justices will field requests by parties in five gay-marriage cases from states in three of the nation’s thirteen circuits. In the order in which they were filed (and the timing may be significant), the cases are from Utah (Herbert v. Kitchen), Oklahoma (Smith v. Bishop), Virginia (Rainey v. Bostic;, Indiana (Bogan v. Baskin), and Wisconsin (Walker v. Wolf). If the Court decides on Monday to begin the process of hearing a case this term, we may know about it this week, and a decision would almost certainly come by early next summer, or sooner.

For now, there is intense focus on whether the court will take a case, and which one will it be.

The case from Utah was filed first, and that could give it precedence. The District Court ruling was also the first to rely heavily on Windsor. A number of prominent lawyers have recently joined the plaintiff’s legal team . . . . 

In the case from Virginia, the plaintiffs have a number of prominent lawyers on their side, too. They include, most consequentially, Ted Olson and David Boies, who led the case against Prop 8. Their fifty-state strategy in the Prop 8 case was much criticized by the gay-rights legal establishment at the time. That such a victory is now within reach may, without a grant of certiorari in their Virginia case, be cold comfort for the pair. Olson is also a former Republican solicitor general and has a number of friends among the Justices, who know his commitment to the issue. There is another point of resonance: the Supreme Court case that ended laws banning interracial marriage was Loving v. Virginia, and another case from the same state may be seen as an appropriate bookend. Other prominent gay-rights attorneys have also entered the Virginia case, including a number who have filed their own petitions. Among them are Paul M. Smith, who argued Lawrence v. Texas, which struck down anti-gay sodomy laws and laid the theoretical ground for Windsor, and lawyers from the American Civil Liberties Union and Lambda Legal.

Or they may wait for a ruling against same-sex marriage from an appellate court. Justice Ruth Bader Ginsburg, speaking recently at the University of Minnesota Law School, suggested that without a ruling against same-sex marriage there was “no need for us to rush to step in.” (But she added, “Sooner or later, yes, the question will come to the Court.”) Such a ruling may soon come from the Sixth Circuit, which has heard arguments in, but not yet decided, a group of same-sex marriage cases from Michigan, Ohio, Tennessee, and Kentucky.

The veteran Supreme Court observer Linda Greenhouse recently commented, “It would come as no great surprise if the Supreme Court takes a pass this term. All my court-watching experience tells me that. But still, it’s hard to resist the sense that there is a moment at hand.”

The hope this week is that the Supreme Court will be tempted not to wait.

For those of us in Virginia, if the court rejects the appeal of Rainey v. Bostic, and by default affirms the ruling of the 4th Circuit, then marriage in Virginia could become legal even sooner than next summer.  On the other hand, should the Court take up the appeal from the 4th Circuit, then hopefully by next summer the Marshall-Newman Amendment will be on the trash heap of history where it belongs.

House of Delegates Seeks to Take Mark Herring Off Gay Marriage Case

Proving yet again that the Republican Party of Virginia is little more than a band of political prostitutes that always seek to do the biding of the hate merchants at The Family Foundation - and that the Virginia GOP cares nothing about the Virginia Constitution or Code of Virginia - the House of Delegates in a partisan vote authorized Whore-in-Chief House Speaker William J. Howell to hire outside legal counsel to replace Attorney General Mark Herring in the same-sex marriage lawsuit now on appeal to the United States Supreme Court.  It's yet another example of the Virginia GOP seeking to waste taxpayer funds on a cause not supported by a majority of Virginians.  The Richmond Times Dispatch has details:

The House of Delegates voted 65-32 on Thursday to approve a resolution that empowers the speaker of the House to hire outside legal counsel to replace Attorney General Mark R. Herring in the same-sex marriage lawsuit filed against the state but supported by the Attorney General’s Office.

The resolution also empowers the speaker to hire outside counsel if Gov. Terry McAuliffe were to try to expand the state’s Medicaid program without legislative approval or in any other case in which the governor or attorney general declined to defend a state law.

The resolution states the position of the House and does not require Senate or gubernatorial approval. 

Michael Kelly, a spokesman for the attorney general, said in a statement:

“The House should focus on the reason it is here, which is to find a way to extend health care coverage to low-income Virginians, not to waste taxpayers’ money and time on a meaningless resolution that flies in the face of our constitution’s separation of powers.”

Herring had announced in January that he found Virginia’s amendment to the state constitution defining marriage as between a man and a woman to be in violation of the U.S. Constitution. He refused to defend the law in a federal suit seeking to overturn the same-sex marriage ban.

A federal court in Norfolk has since thrown out the state ban. The ruling was affirmed by a panel of federal appeals court judges in Richmond in June. The case is now headed to the U.S. Supreme Court.

Today's Republican Party of Virginia is just a reworked version of those who fought to maintain Virginia's ban on interracial marriage.  Bigotry is the main pillar of the party.

Supreme Court Could Get Over a Dozen Marriage Case Petitions

Later this month the U.S. Supreme Court will have its first opportunity to decide whether it will take up a gay marriage case appeal and, if it does, which one or collection of appeals.  With every federal court to have considered the issue of state gay marriage bans except one striking such bans down, one would hope that Justice Kennedy will decide to finish the work that was started and join the liberals on the Court to invalidate state gay marriage bans once and for all.  A piece in The Advocate looks at the upcoming decisions to be made by the Court.  Here are excerpts:

There are just two weeks left until the U.S. Supreme Court meets to decide which marriage cases it will take up in its next session, but the marriage equality landscape could still shift significantly between now and then.

At the moment, there are seven cases from five states ready for the Justices to consider. In all seven cases, gay and lesbian plaintiffs have been unanimously victorious, with a series of strongly worded rulings from multiple courts finding that bans on same-sex marriage violate the U.S. Constitution.

But it's possible that nine more states could see progress in marriage litigation before the Supreme Court's first conference on September 29. Rulings are due in the Ninth and Sixth Circuits, which include Nevada, Ohio, Michigan and more. A ruling in any of those cases could complicate the Supreme Court's plans.

If a decision came from either the Ninth or Sixth Circuits, the Court might decide to put off a decision on which cases to take. That would be particularly likely if the decision was at odds with the previous victories for the plaintiffs. The Ninth Circuit gave hints during oral argument that its ruling would be generally similar to the victories that have come before, but the Sixth Circuit judges are harder to read.

And of course, the Supreme Court could always opt not to take any case at all.  Meanwhile, litigation continues unabated in Florida, Texas, and Louisiana, with courts so far unwilling to pause lawsuits while they wait for the Supreme Court to return from break.

Thus, we continue to find ourselves in a waiting game.  It goes without saying that the husband and I await the day that Virginia's anti-gay animus inspired Marshall-Newman is struck down definitively once and for all. 

Anti-Gay Prince William Clerk Petitions SCOTUS in Bostic Case

Gay hater, Michele McQuigg

Nasty, homophobic, cow Christofascist Michele McQuigg, Circuit Court Clerk for Prince William County, Virginia, through her extremist counsel from the miss named Alliance Defending Freedom (a group that in reality wants a Christian theocracy) has petitioned the U.S. Supreme Court to hear her appeal of the 4th Circuit Court of Appeals ruling which affirmed the unconstitutionality of Virginia anti-gay animus motivated Marshall-Newman Amendment and related statutes.   If I hold special animosity towards McQuigg, it is because she intervened in this case for the sole purpose of defending hate inspired discrimination against same sex couples.  Whatever I may think of Norfolk Circuit Court Clerk George Schaefer, he was sued in Bostic v. Rainey and did not voluntarily seek out litigation.  Not McQuigg, she sought to be involved and one can only hope that history views her akin to white robed KKK members seeking to deprive blacks of their legal rights.  Here are details from the Daily Press on McQuigg's mission of hate (the filing can be found here):

Prince William County Circuit Court Clerk Michèle B. McQuigg — being represented by an Arizona-based conservative Christian legal organization — filed a formal petition on Friday asking the high court to reverse two recent federal court rulings throwing out Virginia's gay marriage ban.

Lawyers with that organization, the Alliance Defending Freedom, said the court decisions are telling Virginia and its citizens they must "redefine marriage from a gendered (man-woman) institution to a genderless (any two persons) institution."

"Whether the Constitution itself requires such a fundamental redefinition of marriage is an exceedingly important question that should be settled by this Court," the petition says. "The time for answering that question — the time for deciding whether the People throughout the various States are free to affirm their chosen marriage policy — is now."

Though McQuigg was not initially sued in the case, she "intervened" as a defendant in January after signals that newly-elected Virginia Attorney General Mark Herring "would renounce … defense of the challenged marriage laws," the Alliance said.

Since then, McQuigg, who issues marriage licenses as part of her job, has become the Virginia ban's most outspoken defender in the case.

"Throughout this litigation, McQuigg alone has raised and defended all of Virginia's compelling interests in regulating marriage as the union of a man and a woman," Friday's appeal says. Because of that, the Alliance asserts, the Supreme Court would "benefit" by granting a hearing "through this petition."

Indeed, some of the language in McQuigg's petition casts the issue in broad historical terms.

"For millennia, marriage has served the vital social purposes of steering naturally procreative relationships into committed unions and connecting children to both their mother and their father," the filing says. "Man-woman couples, unlike any other relationships, uniquely implicate these important societal interests."

As passed in a 1975 law and 2006 state constitutional amendment, the ban also outlaws civil unions, bars adoption by same-sex couples, “voids” the recognition of gay marriages from other states and doesn't grant property, medical and contract rights to same-sex couples.

Friday's filing was the third "petition for a writ of certiorari" asking the high court to take up the case.

The first came Aug. 8 by the Virginia Attorney General's Office, asking the high court to affirm the lower court decisions. The second was Aug. 22 by Norfolk Circuit Court Clerk George E. Schaefer III, who contends states should be free to define marriage.

If the Supreme Court agrees to take up the issue, a hearing could be set as early as next spring. Ultimately, the court could uphold 31 existing state bans on same-sex marriage, or could outlaw all the bans at once.

And in a separate kind of filing on Wednesday, the case's plaintiffs — despite winning in the lower courts — also exhorted the court to hear the matter.

Supreme Court Stays Virginia Marriages, Inflicts Harm on Gays and Their Families

As many past posts on this blog have laid out in detail, the only true objection to same sex marriages derives from religious based bigotry.  All the other "arguments" do not hold water - as a string of federal court rulings have laid out in detail - and the Christofascists, their political whores in the Republican Party, and bigoted United States Supreme Court justices want to punish gays and withhold civil legal rights solely because of non-adherence to Christofascist hate, ignorance embracing and fear based religious beliefs.  Sadly, today the United States Supreme Court stayed the ruling of the U.S. Circuit Court of Appeals for the Fourth Circuit which would have allowed gay marriages to commence tomorrow morning in Virginia.  While one can hope the Court will ultimately strike down same sex marriage bans nationwide very soon, the short term results are that gays and their families are harmed while vile, nasty individuals like Victoria Cobb of The Family Foundation, Virginia's principal hate organization, bigoted cows like Michele McQuigg, Prince William County Circuit Court Clerk, and arrogant asses like Antonin Scalia for at least a short while longer can preen, pat themselves on the back for their self declared piety, and deprive other Americans of civil legal rights while granting special privileges to one religious faith group.  I suspect that the Founding Fathers, who were rightly suspicious of religion and opposed restricting civil rights based on religious belief would find the Court's action today abhorrent.  The Washington Blade has details on the Court's unfortunate action.  Here are excerpts:

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.

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.”

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. 

As noted before, I hope history views Victoria Cobb, Michele McQuigg and Antonin Scalia, et al, with the same scorn as segregationists of the past and judges who ruled in favor of slavery and later segregation and bans on interracial marriage.  Hate and bigotry are still hate and bigotry no matter how one tries to wrap it in feigned religiosity.

 

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.

 

Hate Group Files Stay Request with SCOTUS in Virginia Marriage Case

While not yet officially designated as a hate group by the Southern Poverty Law Center, the ludicrously named Alliance Defending Freedom - which claims it fights fro religious freedom but in reality works to force Christofascist beliefs on all Americans - has filed an Application for a Stay of Mandate with the U.S. Supreme Court in Bostic v. Rainey, et al., after the United States Court of Appeal for the fourth Circuit refused to stay its ruling that Virginia's bans on same sex marriage are unconstitutional under the U. S. Constitution.  ADF is representing nasty bigot Prince William County Circuit Court Clerk, Michele McQuigg who wants to keep LGBT Virginians inferior under the law because we do not subscribe to her hate and fear based religious beliefs.  The good news is that ADF has a profound track record of losing cases.  The bad news is that many speculate that the Supreme Court will grant a stay pending an appeal from the 4th Circuit.   The full application can be seen here.  Here are further details from the Washington Blade:

The court clerk defending Virginia’s ban on same-sex marriage filed a petition on Thursday with the U.S. Supreme Court calling on justices to block a lower court decision allowing gay couples to wed in the Old Dominion starting next week.

“Unless this Court issues the stay requested here and makes clear that the courts of appeals should stay their mandates in these cases, it is likely that other circuits will mistakenly follow the Fourth Circuit’s lead,” the brief states. “Yet that would invite needless chaos and uncertainty rather than facilitate the orderly and dignified resolution of a constitutional question of enormous national importance.”

The brief, signed by Alliance Defending Freedom senior counsel Byron Babione, argues the Supreme Court should grant a stay because justices are likely to consider take up a same-sex marriage case on appeal with a fair prospect of reversing lower court decisions overturning bans on gay nuptials.

Unless the Supreme Court intervenes, same-sex couples could start obtaining marriage licenses from clerks’ offices in Virginia after the Fourth Circuit issues the mandate on its decision, which is set to occur 8 am on August 21.

The petition from Alliance Defending Freedom was delivered to Chief Justice John Roberts, who’s responsible for stay requests for the Fourth Circuit. Roberts can decide the matter on his own, or refer the request to the entire court.

It remains to be seen what action the Supreme Court will take, but justices have previously granted stays on similar decisions in favor of marriage equality.

Shannon Minter, legal director for the National Center for Lesbian Rights, nonetheless said he sees room for the Supreme Court to deny a stay this time around in the Virginia case.

“A lot has changed since the Court issued a stay in Kitchen, which was the first district court decision in the entire country striking down a state marriage ban after Windsor,” Minter said. “There are now many other such decisions, in every corner of the nation. The Court could decide that a stay is no longer warranted.”

In the event the Supreme Court declines to issue a stay, the Virginia decision would become binding precedent in the Fourth Circuit. Minter said whether clerks in other Fourth Circuit states — West Virginia, North Carolina and South Carolina — would then have the authority to distribute marriage licenses to same-sex couples “would depend on the specifics of state law.”

“But whether immediately or with some short delay to get implementing orders, I expect that marriages would commence in those states very quickly,” Minter said.

Michelle McQuigg - the face of anti-gay hate