Following Monday’s landmark decision by an appellate court panel to uphold a ruling to strike down Virginia’s same-sex marriage ban, one of the defendants has asked the court to stay the mandate, pending an eventual U.S. Supreme Court decision.

Michèle B. McQuigg, circuit court clerk in Prince William County, filed the motion Friday with the 4th U.S. Circuit Court of Appeals in Richmond. She also waived her right for a rehearing before the full Court of Appeals, paving the way for a likely Supreme Court review this fall.

“A stay will ensure the orderly resolution of the important constitutional question presented in this case while avoiding uncertainty for the public and irreparable injury to the commonwealth,” the motion states.

In a 2-1 decision, the 4th Circuit judges had agreed with U.S. Judge Arenda L. Wright Allen’s ruling in February that the 2006 amendment to the Virginia Constitution defining marriage as between a man and a woman violates the equal protection clause and due process clause of the 14th Amendment of the U.S. Constitution.

Timothy B. Bostic and Tony C. London, a gay couple from Norfolk, had filed the suit in July 2013 after they had been denied a marriage license by the local circuit court clerk.

The appellate court’s ruling that affirmed the Norfolk decision would have taken effect after 21 days, allowing same-sex couples in Virginia to obtain marriage licenses, had the defendant not asked for a stay.

Court records show that Byron J. Babione, senior counsel with the Alliance Defense Fund, who represents McQuigg, warned the court that allowing gay couples to marry before the Supreme Court settles the matter would produce “legal uncertainty and confusion” similar to that in Utah, where, after a federal judge found the state’s gay marriage ban unconstitutional, more than 1,400 same-sex couples married.

The U.S. Supreme Court then placed the ruling on hold while the appeal is pending, putting the marriages in legal limbo.

“The Utah marriage case serves as a useful example,” the motion states. “In the absence of a stay, same-sex couples in Virginia may obtain marriage licenses during an interim period only to have their validity become immediately questionable should the Supreme Court disagree with the panel’s resolution of this case,” it says.

Adam Umhoefer, executive director of the American Foundation for Equal Rights, the organization sponsoring the Virginia case, said Friday that every court has agreed there is no good reason to deny gay men and lesbians the freedom to marry.

“Opponents of equality may try to continue the fight, but they will fail,” Umhoefer said.

Carl Tobias, a constitutional law professor at the University of Richmond School of Law, said he expects the appeals court to grant the stay.

“This means that same-sex couples will not be able to marry in Virginia until the Supreme Court rules on the merits, with a final decision coming in June 2015,” he said.

(804) 649-6537

Twitter: @MSchmidtRTD

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