Appeals court refuses to stay ruling that OKs same-sex marriages in Virginia

The move means that same-sex couples could begin obtaining Virginia marriage licenses as early as next week. Supporters of the Virginia gay marriage ban said they would ask the US Supreme Court to issue its own stay.

Stave Helber/AP/File
Tony London waves to the crowd as he and his partner, Tim Bostic (r.), leave federal court in Norfolk, Va., after a hearing on Virginia's ban on gay marriage, Feb. 4, 2014.

A federal appeals court that struck down Virginia’s ban on same-sex marriage last month refused on Wednesday to stay its decision pending review at the US Supreme Court.

The move means that same-sex couples could begin obtaining Virginia marriage licenses or having out-of-state marriages recognized in Virginia as early as next week.

Supporters of the Virginia ban said they would ask the Supreme Court to issue its own stay to preserve the legal status quo while petitions for review are filed at the high court.

Since January, the justices have twice issued their own stay to block lower court rulings that would have allowed same-sex couples to begin marrying, despite pending appeals.

Some judges have cited those actions by the Supreme Court as a signal that they should not order immediate implementation of their decisions in same-sex marriage cases.

In the Virginia case, a panel of the Richmond-based Fourth Circuit Court of Appeals split 2 to 1 in its July 28 decision to invalidate the state’s same-sex marriage ban. The US Constitution, the court majority said, protects a fundamental right to marry without regard to sexual orientation. The court added that the Virginia ban on same-sex marriage is invalid because it violates that fundamental right.

The Supreme Court has not yet directly confronted that question.

Supporters of the Virginia ban asked the appeals court to postpone implementation of its decision to allow an appeal to the Supreme Court. Opponents of the ban urged the appeals court to enforce its mandate and allow same-sex couples to marry despite ongoing litigation.

Since the right to marry is fundamental, Virginia’s prohibition on same-sex marriage constitutes an irreparable harm to all gay men and lesbians in the state, every day that it remains in effect, wrote Theodore Olson, a Washington appellate lawyer and former US solicitor general, in his brief urging the appeals court to reject the stay request.

“Once declared unconstitutional, such a deprivation of a fundamental right should not be permitted to remain in force, even during the pendency of an appeal,” Mr. Olson wrote.

Supporters of the Virginia ban argued in their own briefs that failure to stay the decision would probably result in confusion and uncertainty among state officials and those seeking to get married.

“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,” Byron Babione, a lawyer with the conservative group Alliance Defending Freedom, wrote in his brief to the appeals court.

In a brief filed on behalf of state officials, Virginia Solicitor General Stuart Raphael told the appeals court that a stay was warranted.

If marriages were allowed to take place but the Supreme Court ultimately reversed the appeals court’s decision, he said, it would result in confusion and significant complications for the state.

Virginia might have to revoke adoptions by same-sex couples, revise birth and death certificates, and require refiling of joint tax returns, among other issues, he said.

The filing on behalf of state officials was somewhat unexpected because Virginia Attorney General Mark Herring has made clear his view that the same-sex marriage ban is unconstitutional. Nonetheless, his office said it believed that the potential unintended consequences of lifting the stay too soon outweighed a need to move immediately.

In a statement, Mr. Herring said the Fourth Circuit’s decision would not take effect until Aug. 20 at the earliest. Clerks would not be authorized to issue marriage licenses to same-sex couples until then.

He added: “It’s also possible that the Supreme Court could issue its own stay, as it has done in similar cases.”

The court panel’s decision to lift the stay mirrored its vote to strike down the ban. The two majority judges did not explain their decision.

Their order is brief. “Upon consideration of submissions relative to the motion to stay mandate, the court denies the motion,” the order says.

The third judge on the panel voted to grant the motion and keep the stay in place.

In a statement Wednesday, Mr. Babione said lawyers would ask the Supreme Court to issue a stay in the case. “We trust the Supreme Court will grant our request in order to ensure an orderly and dignified resolution of this important constitutional question,” he said.

The request will be filed with Chief Justice John Roberts, who handles such issues from the Fourth Circuit.

Petitions for Supreme Court review are being filed in same-sex marriage cases from Utah and Virginia. Other cases are likely to follow.

The high court is expected to consider taking up one or more same-sex marriage cases this fall.

The Virginia case is Bostic v. Schaefer (14-1167).

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