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Topics In the News
Fourth Circuit Denies Stay of Marriage Equality Ruling
Posted by: Claude J. Summers on 08/13/14
Last updated on: 08/13/14
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On August 13, 2014, the United States Court of Appeals for the Fourth Circuit denied a request to stay its July 28 decision invalidating Virginia's ban on same-sex marriage. Barring an intervention by the Supreme Court of the United States, same-sex couples may marry in Virginia beginning on August 20, 2014.

In a terse statement, the panel that invalidated Virginia's same-sex marriage ban on a 2-1 vote in the case known as Bostic v. Schaefer rejected, also on a 2-1 vote, a motion from Michèle McQuigg, Prince William County Clerk of Court, requesting a stay of its decision pending her appeal to the Supreme Court. The motion was opposed by the ACLU and Lambda Legal. McQuigg may file an emergency appeal to the Supreme Court asking for a stay. Unless that appeal is granted, marriages will begin in Virginia on August 20.

"We hope that the Supreme Court will leave this ruling in place, so that same-sex couples may begin marrying right away," said Claire Guthrie Gastañaga, Executive Director of the ACLU of Virginia. "Our clients have already waited far too long to exercise their constitutional right to marry, or to have their marriages from other states recognized."

In the opinion issued on July 28, 2014, Judge Henry Floyd and Judge Roger Gregory found that Virginia's marriage laws "impermissibly infringe upon its citizens' fundamental right to marry." The ruling upheld the February decision of U.S. District Judge Arenda L. Wright Allen, who found that the ban violates the U.S. Constitution's equal protection clause.

The majority opinion emphasized that the right being sought in the case is not a right to "same-sex marriage," but rather the long-established fundamental right to marriage. In contrast, Judge Paul Niemeyer, who dissented, said that there "is no fundamental right to same-sex marriage and there are rational reasons for not recognizing it."

The majority pointed out that "Over the decades, the Supreme Court has demonstrated that the right to marry is an expansive liberty interest that may stretch to accommodate changing societal norms."

Judges Floyd and Gregory also pithily observed that "If courts limited the right to marry to certain couplings, they would effectively create a list of preferred spouses, rendering the choice of whom to marry a hollow choice indeed."

They asserted that "Denying same-sex couples this choice [of spouses] prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance."

Bostic v. Schaefer was brought by the American Foundation for Equal Rights on behalf of a same-sex couple who sought to marry in Virginia and a same-sex couple who sought to have their out-of-state marriage recognized in Virginia. It was argued by acclaimed attorneys Theodore Olsen and David Boies. The ACLU and Lambda Legal were permitted to intervene in the case.

The same-sex marriage ban was originally defended by former Virginia Attorney General Ken Cuccinelli, but after Mark Herring took office, he reversed the state's position. Agreeing with the plaintiffs that the ban is unconstitutional, he refused to defend it. The defendants in the case are two county clerks, who are represented by the Alliance Defending Freedom, a right-wing and anti-gay legal organization.

The Fourth Circuit encompasses Maryland, West Virginia, North Carolina, and South Carolina, as well as Virginia. The decision specifically concerns Virginia's marriage laws, but will also serve as precedent for pending lawsuits challenging same-sex marriage bans in West Virginia, North Carolina, and South Carolina.

If the Supreme Court declines to stay the decision, clerks in West Virginia, North Carolina, and South Carolina may also feel obligated to issue marriage licenses to same-sex couples in those states.

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