Supreme Court puts hold on Virginia same-sex marriages in signal to courts

The Supreme Court action sends a clear signal to other appeals courts and federal judges across the country that it expects them to issue similar stays in future same-sex marriage cases.

The US Supreme Court issued a stay Wednesday that keeps in place a ban on same-sex marriages in Virginia until after the high court has had an opportunity to consider the issue.

The high court action maintains the status quo in Virginia until the case is ultimately resolved by the justices. In addition, it sends a clear signal to other appeals courts and federal judges across the country that the Supreme Court expects them to issue similar stays in future cases.

In the Virginia case, the action means the state’s requirement that marriage be limited to a union between one man and one woman will remain in place while the court considers whether to take up legal challenges to same-sex marriage bans in Virginia and other states.

Had the court declined to issue the stay, same-sex marriages would have been legal starting at 8 a.m. Thursday.

The brief order noted that the issue had been submitted to the full court. There was no indication of how the justices voted, and no dissenting opinions were filed.

The Supreme Court has twice before issued orders that federal appeals court decisions concerning same-sex marriages must be put on hold pending high court review. Wednesday’s action is consistent with those earlier moves.

The latest stay order came in response to a July 28 decision by the Fourth US Circuit Court of Appeals in Richmond. The appeals court panel voted 2 to 1 to strike down Virginia’s ban on same-sex marriage. The court then refused to postpone its ruling to allow time for an appeal to the Supreme Court.

Instead, the majority judges on the Fourth Circuit panel said their ruling would take full effect Thursday.

Defenders of Virginia’s same-sex marriage ban urged the Supreme Court to step in and postpone the appeals court decision, in the same way it postponed earlier same-sex marriage decisions by the Denver-based Tenth Circuit.

“Unless this Court issues the stay requested here and makes clear that the courts of appeals should stay their mandates in these cases, it is likely that other circuits will mistakenly follow the Fourth Circuit’s lead,” Byron Babione, of the conservative group Alliance Defending Freedom, wrote in his brief to the high court.

“That would invite needless chaos and uncertainty rather than facilitate the orderly and dignified resolution of a constitutional question of enormous national importance,” he wrote.

Mr. Babione said the only harm to same-sex couples – if they ultimately win their case – would be a “modest delay” in full state recognition of their relationships.

Lawyers for those challenging the Virginia ban disagreed with that assessment.

“Each day Plaintiffs’ right to marry is denied is a day that can never be returned to them – a wrong that can never be remedied,” Theodore Olson, a Washington appellate lawyer and former US solicitor general in the Bush administration, wrote in his brief to the court on behalf of same-sex couples.

A second brief, on behalf of all of Virginia’s 14,000 same-sex couples, says that same-gender partners would suffer irreparable harm if the court delayed the Fourth Circuit’s ruling.

“While this case remains pending in this court, children will be born, people will die, and loved ones will fall unexpectedly ill,” Washington appellate lawyers Paul Smith wrote. “The substantive legal protections afforded by marriage can be critical, if not life-changing, during such major life events and personal crises.”

Lawyers for the same-sex couples said that allowing the ban to fall immediately would cause no harm to Virginia or its citizens. Experience in states that recognize same-sex marriages “demonstrates vividly the complete absence of any such irreparable harm to others arising from such recognition,” Mr. Smith wrote.

Babione said the harms would be significant and broad-based. The Fourth Circuit didn’t just redefine marriage in Virginia, he said, the panel effectively federalized a genderless definition of marriage by stripping the states of their traditional authority to define marriage through the political processes.

He said without a stay, many couples would obtain marriage licenses only to have those licenses yanked back later should the Supreme Court reverse the lower court decision.

Olson dismissed the threat of such a disruption. He said lower courts could address the problem, if necessary.

The lawyer added: “In any event, that risk of uncertainty falls on those same-sex couples who choose to marry before this court has ruled.”

Virginia Attorney General Mark Herring has announced his view that the Virginia ban violates the constitutional rights of same-sex couples. Nonetheless, in a brief to the Supreme Court, he urged the court to issue a stay of the appeals court ruling.

Attorney General Herring also asked the high court to agree to take up the Virginia case and issue its own ruling.

“Although it is painful to keep Virginia’s same-sex couples and their children waiting any longer to enjoy the rights guaranteed by the Fourteenth Amendment, the rule of law requires that this court be afforded the time needed to settle the question,” the attorney general’s brief said. “Irreparable harm is threatened whichever way the court decides the stay request.”

The brief, written by state Solicitor General Stuart Raphael, compared the situation of immediately recognizing same-sex marriage in Virginia to speeding in a car without wearing a seatbelt. “If no accident occurs, the passengers will be just fine,” Mr. Raphael wrote.

“But if this court’s decision should go the other way, same-sex couples, their children, and innumerable third parties who interact with them risk being thrown from the car,” the solicitor general said. “The status quo ante could not be restored, and putting the pieces back together would pose a wrenching and insurmountable task.”

The case is McQuigg v. Bostic (14A196).