Demonstrations outside the U.S. Supreme Court on the day of arguments in the case challenging California’s Prop 8 legislation. March 26, 2013. (Photo: Diego M. Radzinschi/NLJ)
Updated 5:36 p.m.
As expected, the U.S. Supreme Court on Wednesday delayed enforcement of a federal appeals court ruling that struck down Virginia’s ban on same-sex marriages.
In a brief unsigned order, the court said the ruling by the U.S. Court of Appeals for the Fourth Circuit was stayed, “pending the timely filing and disposition of a petition for a writ of certiorari.” If the cert petition or appeal is denied, the order continued, the stay would end, but if it is granted, the stay would be terminated “upon the sending down of the judgment of this court.”
The high court’s order means that in Virginia, where local clerks offices were preparing to handle same-sex marriages beginning August 21 at 8 a.m., ceremonies will be on hold until the high court decides the constitutionality of the ban. Revised wedding forms were prepared in case the court did not act before Thursday.
In anticipation of the stay, some parties in the Virginia litigation urged to the justices to hasten the review process by granting certiorari based on papers filed, but the court did not act on that request. Though the court issues orders periodically during its summer recess, the justices won’t formally meet to discuss pending petitions until its so-called “long conference” on September 29.
Reaction to the court’s action was swift. “The Supreme Court acted wisely in restraining the lower court from implementing a ruling of this magnitude before the high court has a chance to decide the issue,” the Alliance Defending Freedom—the group that represents supporters of Virginia’s ban—said in a statement.
The lawyer for same-sex couples seeking the right to marry urged the high court to take up the constitutional issue quickly. “We are confident that when the Supreme Court reviews the … case, it too will agree and end the flagrant injustice of segregating Americans based on sexual orientation,” said David Boies of Boies, Schiller & Flexner.
Virginia Attorney General Mark Herring, who supports same-sex marriage but also asked the court for a stay, agreed that time is of the essence. “Virginia families suffer each day that this decision is delayed.”
The court’s stay mirrored a similar delay it imposed in a Utah same-sex marriage case, so the ruling was not a surprise.
An application filed on behalf of 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.
In Bostic v. Rainey, the Fourth Circuit ruled in July that the Virginia ban violated the “fundamental right to marry.” The court subsequently denied a request to stay enforcement of the ruling, and McQuigg’s petition to the high court followed.
Chief Justice John Roberts Jr., who handles emergency matters from the Fourth Circuit, asked other parties to brief the issue. He referred the case to the full court, which issued the order Wednesday afternoon.
Contact Tony Mauro at email@example.com.