A class action in Virginia federal district court challenging the state ban on same-sex marriage will be on hold pending a federal appeal court’s decision on the constitutionality of the prohibition.
U.S. District Judge Michael Urbanski of the Western District of Virginia on March 31 issued a stay in Harris v. Rainey. The plaintiffs, Urbanksi said in his ruling, will “have their day in court” in the U.S. Court of Appeals for the Fourth Circuit.
The Fourth Circuit in March permitted the lawyers for the Harris class to intervene in a pending case already before the appeals court. In that case, Bostic v. Schaefer, a federal trial judge in the Eastern District of Virginia struck down the state ban on gay marriage.
“Because of this seismic procedural development, the constitutional issue in this case is now in the hands of the Fourth Circuit Court of Appeals,” Urbanski wrote. “As the Fourth Circuit’s impending decision is binding, the court will stay this case pending that decision.”
In the Harris case, as in the Bostic litigation, which was brought on behalf of two couples, the state of Virginia abandoned its defense of the ban on same-sex marriage. The “decidedly one-sided” case, Urbanski said, “counsels the court to exercise restraint in issuing a ruling at this time.”
Urbanski called the Harris class’ successful intervention in the Fourth Circuit litigation a “procedural game-changer.”
“The court does not believe it to be prudent or in the interests of justice to issue an opinion in a setting where only one side’s arguments are forcefully presented,” the judge wrote. “The Fourth Circuit, however, will have the benefit of plaintiffs’ arguments and a vigorous defense to inform the issues it must decide in the pending appeal.”
In the Fourth Circuit, lawyers for the Bostic plaintiffs fought the effort by the 14,000-member Harris class to intervene. The Bostic attorneys—including Theodore Olson of Gibson, Dunn & Crutcher and David Boies of Boies, Schiller & Flexner—said intervention on appeal “inescapably risks multiplying and delaying these proceedings.”
The lawyers in the Harris case, including Jenner & Block’s Paul Smith, convinced the Fourth Circuit to permit the class to intervene.
The Fourth Circuit has scheduled argument in the case for May 13.