RICHMOND — A federal appeals court appears to have cleared the way for same-sex marriages to begin in Virginia as early as next week, but that could be put on hold indefinitely if the nation’s highest court intervenes.
The state also would need to start recognizing gay marriages from out of state next Wednesday after the 4th U.S. Circuit Court of Appeals’ decision not to delay its ruling that struck down the state’s gay marriage ban.
While the U.S. Supreme Court could effectively put same-sex marriages on hold again if opponents in the case are able to win an emergency delay, supporters offered tempered excitement.
“Virginia’s loving, committed gay and lesbian couples and their children should not be asked to wait one more day for their fundamental right to marry,” said Adam Umhoefer, executive director of the American Foundation for Equal Rights, which argued against Virginia’s gay marriage ban. However, the group noted that the couples in the case understand the ruling will likely be appealed “and until then any prospect of marriage equality will be on hold.”
The Virginia lawsuit was filed by Timothy Bostic and Tony London of Norfolk, who were denied a marriage license, and Carol Schall and Mary Townley of Chesterfield County. The women were married in California and wanted their marriage recognized in the state where they are raising a 16-year-old daughter.
A county clerk in northern Virginia had asked the court in Richmond to stay its decision issued in late July while it is appealed to the high court. The appeals court’s order did not explain why it denied that request.
Virginia voters approved a constitutional amendment in 2006 that banned gay marriage and prohibited the recognition of such marriages performed in other states. The appeals court ruling overturning that ban was the third such ruling by a federal appeals court and the first in the South, a region where the rising tide of rulings favoring marriage equality is testing concepts of states’ rights and traditional, conservative moral values that have long held sway.
The 4th Circuit’s decision on Wednesday “shows that there’s no longer a justification to keep same-sex couples from marrying. … I wonder whether we’ve reached something of a tipping point,” said Nancy Leong, a law professor at the University of Denver.
Ken Connelly, legal counsel for Alliance Defending Freedom, which is representing Prince William County Clerk of Court Michele B. McQuigg in the case, said the group will seek an emergency stay from the Supreme Court “as soon as possible.” That request will go to Chief Justice John Roberts, who was appointed chief justice by then-President George W. Bush in 2005 and is responsible for the 4th Circuit.
Connelly said he expects the stay to be granted, “given that there isn’t any substantive difference” between the Virginia case and a federal case in Utah, in which the Supreme Court has twice granted delays in the state’s fight to keep its same-sex marriage ban.
While clerks in other states within the 4th Circuit — West Virginia and the Carolinas — wouldn’t technically have to begin issuing licenses as well, federal courts in the state would likely make them if they don’t, Leong said.
Attorneys general in the Carolinas did not indicate whether they’d direct clerks to begin issuing licenses along with Virginia. County clerks in West Virginia were told that its ban remains in effect. Maryland, another state in the circuit, already allows same-sex marriages.
Virginia Attorney General Mark Herring has said he will not defend the state’s ban and believes the courts ruled correctly in striking it down.
A panel of the 6th U.S. Circuit Court of Appeals in Cincinnati last week considered arguments regarding six cases from Michigan, Ohio, Kentucky and Tennessee. Some observers have said the 6th Circuit may be the first to uphold statewide gay marriage bans after more than 20 consecutive rulings in the past eight months striking them down.