The U.S. Supreme Court on Wednesday stayed a ruling by a federal appeals court that would have allowed same-sex couples in Virginia to get married this morning.
The justices granted a request made last week by opponents of gay marriage, including Prince William County Circuit Court Clerk Michèle B. McQuigg.
Lawyers for McQuigg said allowing same-sex couples to marry before a Supreme Court review could create “uncertainty for the public” and “irreparable injury to the commonwealth.”
The Richmond-based 4th U.S. Circuit Court of Appeals last month upheld a ruling by a Norfolk federal judge overturning Virginia’s constitutional amendment defining marriage as between a man and a woman.
The Supreme Court did not give an explanation or release the vote totals Wednesday.
When liberals and conservatives argue they often talk past each other, deploying arguments that seem like winning ones to them but that the other side views as irrelevant or unimportant.
“The cryptic nature of the court’s order makes it difficult to ascertain its reasoning,” said Carl Tobias, a professor of constitutional law at the University of Richmond School of Law.
“All of the 15-plus federal district courts and two appeals courts that have resolved the same-sex marriage issue have ruled for plaintiffs as in the Virginia case,” Tobias said.
The American Civil Liberties Union, which has signed on to the case for a class of same-sex couples, had argued in an effort to distinguish the Virginia situation from Utah’s, Tobias said.
In December, a federal judge in Utah was the first to strike down a state ban of gay marriage. Because he did not issue a stay of his ruling, more than 1,400 same-sex couples married in the following days, until the U.S. Supreme Court stayed the decision pending its review of the case. In the meantime, the legal status of these marriages remains unclear.
“Although the plaintiffs in the Virginia case made a number of arguments for distinguishing the two situations, a majority of justices was apparently not persuaded,” Tobias said.
Attorney General Mark R. Herring, who refused to defend Virginia’s marriage amendment but still asked the Supreme Court to allow the stay, said the decision was consistent with the Utah ruling.
“It’s a nearly identical case, and I thought that under those circumstances, that’s probably what the Supreme Court would do,” Herring said Wednesday afternoon.
And Gov. Terry McAuliffe in a statement called the ruling a “temporary delay to the inevitable conclusion that Virginians who love each other should have the opportunity to marry regardless of their sexual orientation.”
While the decision did not come as a surprise to legal experts, advocates for same-sex marriage, who had prepared for weddings across the state this week, still expressed disappointment and pushed for a final resolution of this issue before the U.S. Supreme Court.
“While we are disappointed that marriages will have to wait, this was not unexpected,” said Timothy Bostic, one of the plaintiffs in the case.
“We feel that this case deserves to be heard by the Supreme Court and be finally decided for all Americans. There are thousands of couples just like us in 30 other states waiting to get married. It is time for all Americans to be able to enjoy the freedom to marry, no matter what state they live in,” said Bostic, who with his partner Tony C. London filed the suit last year after being denied a marriage license by the Norfolk Circuit Court clerk.
Claire Guthrie Gastañaga, executive director of the ACLU of Virginia, said that because of the stay, many gay and lesbian Virginians will live without legal recognition of their relationships with their children, access to their spouse’s health insurance benefits and other benefits that married couples take for granted.
“We hope that the Supreme Court will decide this case as quickly as possible so that families will not have to wait any longer than necessary to exercise these rights,” Gastañaga said.
The Family Foundation of Virginia applauded the court’s decision to stay the ruling.
In a 2-1 decision, the 4th U.S. Circuit Court of Appeals judges upheld U.S. Judge Arenda L. Wright Allen's ruling overturning the ban.
The Bostic-London suit, filed at U.S. District Court in Norfolk, could become to the marriage-equality cause what Loving v. Virginia was to interracial marriage.
“We are pleased that for the sake of Virginia’s families and all involved that the Supreme Court showed consistency and granted a stay just as it has in other similar cases,” said Victoria Cobb, president of the Family Foundation.
“The debate over marriage should be allowed to continue in the public square, in the legislature and at the ballot box, and not be imposed by the courts. Let’s have a civil, reasonable debate over marriage and the government’s involvement in marriage. It would be unfortunate if that debate was cut off by a handful of judges,” Cobb said.
After last week’s ruling by the Richmond appellate court that had denied motions for a stay and subsequent appeals by opponents, Chief Justice John Roberts, who is responsible for the 4th Circuit, gave supporters of gay marriage until 5 p.m. Monday to respond.
Attorneys for Bostic and London, the ACLU and Lambda Legal urged the court not to delay the issuance of marriage licenses for same-sex couples in Virginia.
David Boies, one of the attorneys representing the American Foundation for Equal Rights on behalf of the Norfolk couple, said the stay issued Wednesday will remain in place “until the case has been fully briefed, argued and decided by the U.S. Supreme Court” — should it agree to hear it.