Virginia Asks Supreme Court to Take Same-Sex Marriage Case

Virginia Asks Supreme Court to Take Same-Sex Marriage Case Photo: Diego M. Radzinschi/NLJ Demonstrations for and against same-sex marriage outside the U.S. Supreme Court on the day of arguments in the case challenging California's Prop 8 legislation. March 26, 2013.

Virginia Attorney General Mark Herring on Friday petitioned the U.S. Supreme Court to review an appeals court decision that struck down the commonwealth’s ban on same-sex marriage, even though he supported the ruling.

Petitioning the court in the case Rainey v. Bostic, Herring said, “The nation looks to this court to answer the question presented here. … This court’s decision on the merits would resolve an important federal question that rages nationwide.”

Herring also said he was mindful that the ruling last month by the U.S. Court of Appeals for the Fourth Circuit declaring the Virginia ban unconstitutional affected other states in the Fourth Circuit—specifically North Carolina, South Carolina and West Virginia—where district courts had delayed similar litigation pending a decision in the Virginia case.

Speed was a factor for another reason, according to a statement from Herring, a Democrat who took office last year replacing a Republican predecessor who favored the ban on same-sex marriage. “Prince William County Clerk of Court Michèle McQuigg, who opposes marriage equality, has already said she intends to petition for certiorari,” the release stated. “But by filing now, the Attorney General may enable the court to consider the case more quickly.”

The Virginia petition joins those filed by the state of Utah and a conservative group that represents supporters of the Oklahoma ban. The petitions, and the growing tide of litigation over the issue, have led numerous commentators to predict the Supreme Court will take up the constitutional issue in its term beginning in October.

Herring told the high court that the issue needs to be resolved for a growing number of Virginia residents.

“In Virginia alone, according to 2010 census data, more than 2,500 same-sex couples are raising more than 4,000 children younger than age 18,” according to the brief written by Virginia Solicitor General Stuart Raphael.

Virginia has a special interest in the issue for another reason, Herring reminded the court. The commonwealth’s ban on interracial marriage formed the basis for the high court’s 1967 ruling in Virginia v. Loving striking down the law—a decision that has been invoked in the widespread litigation over same-sex marriage.

In the Loving case, Herring said supporters of the ban argued that the issue should be left to state legislatures to decide. That is an argument that has been heard in the same-sex marriage cases as well—most recently during oral arguments before the U.S. Court of Appeals for the Sixth Circuit this week.

“The court should not entertain pleas to stand on the sidelines to watch,” the Virginia petition urged. “How much longer must these citizens and their children wait to realize the promise of equal justice under law?”

Contact Tony Mauro at tmauro@alm.com. On Twitter: @Tonymauro.

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