A federal appeals court on Wednesday cleared the way for same-sex marriages to be performed in Virginia as soon as next week, denying a request to stay its ruling striking down the state’s ban on the unions.
A three-judge panel of the U.S. Circuit Court of Appeals for the 4th Circuit, on a 2-1 vote last month, upheld a lower court ruling saying the ban violated constitutional guarantees of due process and equal protection. By the same vote, the judges refused the request for a stay.
The decision means gay marriages could be performed in the state as early as 8 a.m. Aug. 21, according to a clarifying order the court issued Thursday. The Supreme Court could still issue a stay of its own to prevent the law from taking effect.
Lawyers with Alliance Defending Freedom, which is defending Prince William Circuit Court Clerk Michele B. McQuigg in the case and sought the stay last week, say they plan to file an appeal “as soon as possible.”
Ken Connelly, a lawyer with the group, said he was optimistic about the chances of getting a stay on appeal since the high court issued such an order to delay implementation of a similar decision in Utah.
“We would expect, being no substantive difference, that the Supreme Court would grant the application,” he said.
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Carl Tobias, a professor at the University of Richmond School of Law, agreed with Mr. Connelly that the Supreme Court would likely grant a stay. He also noted that the 4th Circuit judges did not elaborate in their order on why they declined to issue such an order.
“It may be that the same judges who affirmed the district court and denied the stay believed that defendants would lose on appeal or thought that plaintiffs should not have to wait any longer, but the judges did not say,” he said.
Last week, Virginia Attorney General Mark R. Herring, a Democrat who supports gay marriage, nevertheless asked the Supreme Court to review the lower court rulings in the case. Mr. Herring said he hoped the Virginia case could be the precedent by which gay marriage was legalized nationally.
“No one anticipated we would be this close this quickly to the day when all Virginians have the right to marry the person they love,” he said after Wednesday’s ruling. “That will be a historic day for our commonwealth and a joyous day for thousands of loving couples.”
Supporters and opponents of gay marriage in Utah last week also joined forces to seek a Supreme Court review of a case in that state.
The case in Virginia involves four plaintiffs. Timothy Bostic and Tony London applied for a marriage license from the Norfolk Circuit Court clerk on July 1 but were denied. Carol Schall and Mary Townley, who have lived in Virginia since 1982, were married in California in 2008 and want their marriage to be recognized by the commonwealth.
In 2005, Virginia’s General Assembly approved an amendment to the state’s constitutional saying marriage was the union of one man and one woman. The amendment was ratified in 2006 by 57 percent of voters, or around 1.3 million people.
But public opinion on the issue has shifted in Virginia in recent years, with recent polls showing a clear majority now say they support gay marriage.
• Matthew Cella can be reached at mcella@washingtontimes.com.
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