Va. Same-Sex Marriage Advocates Fight Stay Request

Va. Same-Sex Marriage Advocates Fight Stay Request Photo: Diego M. Radzinschi/NLJ Outside US Supreme Court, June 2013, when the Court announced its decision on Prop. 8 and DOMA. Proponents of same-sex marriage in Virginia on Monday asked the justices not to stay the Fourth Circuit ruling that struck down the state ban on gay marriage.

Updated 4:46 p.m.

Groups supporting same-sex marriage on Monday urged the U.S. Supreme Court not to delay enforcement of a federal appeals court ruling that struck down Virginia’s ban on such marriages.

“We will do everything we can to ensure that same-sex couples do not have to wait a day longer than necessary to finally receive the dignity and protection that only comes with marriage,” James Esseks, director of the American Civil Liberties Union Lesbian Gay Bisexual Transgender and AIDS Project, said in a statement on Monday.

Responding to a plea last week from a Virginia county clerk to stay the decision by the U.S. Court of Appeals for the Fourth Circuit, the high court gave same-sex marriage proponents and other parties until Monday afternoon to reply.

“Granting a stay would impose severe and irreparable harm on Virginia same-sex couples and their children,” wrote Paul Smith of Jenner & Block in a brief on behalf of a class of same-sex couples in Virginia.

In a separate brief for other same-sex marriage plaintiffs, Theodore Olson of Gibson, Dunn & Crutcher also said that if the court decided to grant the stay, it should “expedite resolution of the surpassingly important constitutional questions presented in this case.”

For his part, Virginia Attorney General Mark Herring, who supports same-sex marriage, told the high court nonetheless it should grant a stay until the justices decide the constitutional issue of same-sex marriage.

“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,” said Herring on behalf of state registrar Janet Rainey.

The Supreme Court could act Monday afternoon or later on the stay issue. If it does not act soon, the Fourth Circuit has said same-sex marriages will be allowed in the commonwealth beginning 8 a.m. on August 21.

“The Fourth Circuit finally ruled to let us get married and we are anxious to finally plan our wedding,” said Joanne Harris, one of the plaintiffs in the Virginia case. “We shouldn’t have to wait any longer.”

In spite of the plea from the ACLU and Lambda Legal, the high court is expected by many to grant a stay—as it did in a similar sequence of events involving Utah’s ban.

Lawyers for Prince William County clerk Michele McQuigg referred to the Utah stay in asking the Supreme Court to do the same thing in the Virginia case.

“By doing this [in Utah] the court signaled to all federal courts that they must take similar steps to preserve the enforcement of man-woman marriage laws until this court definitively settles whether the Fourteenth Amendment to the United States Constitution forbids states from retaining that definition of marriage,” Byron Babione of Alliance Defending Freedom told the high court in his stay application last week.

The request for a stay went to Chief Justice John Roberts Jr., who handles motions and emergency applications from the Fourth Circuit. He could decide on the stay himself or refer the question to the full court.

Contact Tony Mauro at tmauro@alm.com.

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