- The Washington Times - Wednesday, August 20, 2014

The U.S. Supreme Court issued a stay Wednesday halting gay marriage from taking effect in Virginia this week, signaling the justices are inching closer to taking up a case that could definitively decide between the rights of states to recognize marriages and the federal government’s guarantee of equal protection.

Chief Justice of the United States John G. Roberts Jr., who handles such requests from the U.S. Court of Appeals for the 4th Circuit, referred the matter to the full court, which ordered the Virginia stay until federal appeals in the case are resolved. The order did not elaborate on the reasoning behind the decision.

Had the high court not intervened, same-sex couples could have begun getting married in Virginia on Thursday, and the state would have had to recognize marriages performed in other states.

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The development came as little surprise. Justice Sonia Sotomayor issued a similar order in January after a federal judge ruled Utah’s ban on gay marriage unconstitutional.

The fast pace at which the Virginia case has hurtled through the judicial system puts it in the running to advance to the Supreme Court if justices choose to hear a gay marriage case this coming term, said Carl Tobias, professor at the University of Richmond Law School. Utah and Oklahoma have also requested that cases from their states be heard by the court.

“There is a little bit of a race to the Supreme Court going on, at least between Virginia and Utah,” Mr. Tobias said.

But he noted that with other gay marriage cases still working their way through the pipeline in a number of circuits, the court could wait to see additional outcomes before selecting a case to consider. Additional cases are expected to be heard in the 7th Circuit and the 9th Circuit.

The 6th U.S. Circuit Court of Appeals has heard arguments in six cases from Kentucky, Michigan, Ohio and Tennessee, and it could be the first to uphold gay marriage bans in the wake of more than 20 consecutive rulings in the past eight months. Conflicting rulings from different federal appeals courts would likely increase the chance the Supreme Court would decide to address the issue.

Virginia Attorney General Mark R. Herring, a Democrat who supports gay marriage, asked the Supreme Court to grant the stay in his state to avoid the kind of uncertainty that came with divergent rulings in Utah.

The Supreme Court’s stay in Utah, which halted gay marriages in the state until federal appeals were exhausted, was issued just over two weeks after a District Court decision legalized the unions. It left uncertain the state’s obligation to recognize the more than 1,000 same-sex marriages performed during the 17 days in which the ban was lifted.

“To avoid [the] kind of legal confusion that might occur in the event there were an adverse ruling later by the Supreme Court, I reluctantly agreed that a stay was appropriate,” Mr. Herring told reporters on Wednesday after the stay was announced.

Mr. Herring said he thought a Supreme Court ruling on the Virginia case “would resolve a number of outstanding legal issues,” and he hoped the case could be the precedent by which gay marriage was legalized nationally.

The attorney general, who announced in January that he would not defend the state’s gay marriage ban, noted that his office has worked to expedite the case and hoped the Supreme Court would consider his request to hear the case.

“To those who are tired of their state not treating them fairly and equally, I am working as hard as I can to fight for equality,” Mr. Herring said.

Some Virginia county court clerks had already begun preparations to issue marriage licenses to same-sex couples on Thursday morning and were ready for a flood of applicants.

Others said they were closely watching for any announcements on the case.

“The office of the clerk, today, tomorrow and always, operates under the law,” said Gerarda Culipher, chief deputy clerk of the Fairfax County Circuit Court.

The case in Virginia involves four plaintiffs. Timothy Bostic and Tony London applied for a marriage license from the Norfolk Circuit Court clerk on July 1 but were denied. Carol Schall and Mary Townley, who have lived in Virginia since 1982, were married in California in 2008 and want their marriage to be recognized by the commonwealth.

The Supreme Court’s order comes a week after a three-judge panel of the 4th Circuit, on a 2-1 vote, refused a request for a stay last week and ordered the ban overturned unless the Supreme Court intervened. The appeals court last month upheld a lower court ruling saying Virginia’s constitutional ban on gay marriage violated constitutional guarantees of due process and equal protection.

Byron Babione, an attorney with the Alliance Defending Freedom, which is defending the state’s gay marriage ban, applauded the decision to postpone gay marriages from being conducted.

“Virginians deserve an orderly and fair resolution to the question of whether they will remain free to preserve marriage as the union of a man and a woman in their laws,” Mr. Babione said in a statement. “By granting our request to place a hold on the 4th Circuit’s decision, the Supreme Court is making clear, as it already did in the Utah marriage case, that it believes a dignified process is better than disorder.”

Virginia’s American Civil Liberties Union spoke out Wednesday against the stay, noting that couples are left without legal protections when they are prevented from marrying.

“We are disappointed that the 14,000 couples we represent in Virginia will have to continue to wait to exercise their fundamental right to marry, or to have their marriages recognized in Virginia,” said Claire Guthrie Gastanaga, executive director of Virginia’s ACLU.

In 2005 Virginia’s General Assembly approved an amendment to the state’s constitutional saying marriage was the union of one man and one woman. The amendment was ratified in 2006 by 57 percent of voters, or around 1.3 million people.

But public opinion on the issue has shifted in Virginia in recent years, with recent polls showing a clear majority now say they support gay marriage.

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