U.S. Supreme Court Stays Virginia Marriages

Jim Burroway

August 20th, 2014

Bostic Stay

The U.S. Supreme Court has stayed the Fourth Circuit Court’s decision upholding a lower court’s ruling which found Virginia’s ban on same-sex marriage unconstitutional. The Fourth Circuit’s ruling was due to go into effect tomorrow morning after it refused to issue a stay last week. The Supreme Court’s stay will remain in effect until it either rejects a request to hear the appeal of the Virginia case or it hands down a decision.

Lawyers from the Alliance Defending Freedom representing Michele McQuigg, a named defendant as county clerk for Prince William County had asked Chief Justice John Roberts to issue a stay. Roberts, who oversees the Fourth Circuit, referred the request to the full court. There’s no indication of whether there were any dissents to the request.


August 20th, 2014

Disappointed, but not surprised.

Eric Payne

August 21st, 2014

There was a time when a stay, when issued, was a strong indication the side the stay benefited would prevail in the attendant appeal.

I’ve said it before — I’ll say it again — I don’t have a good feeling about this Court’s ability to separate “tradition” from law (2014’s Town of Greece v. Galloway) or this Court’s contortionist antics to provide First Amendment Religious Rights to a corporation (Burwell v. Hobby Lobby).

While Virginia’s AG and Governor, seemingly, support marriage equality (though I question the AG’s support, myself), staying the Fourth’s decision allows for SCOTUS to schedule the appeal of the 10th Circuit’s Utah decision… in which, you can bet, the phrase “First Amendment Rights” is going to be used, a lot.


August 21st, 2014

I am with you, Eric. I keep hoping and praying that SCOTUS will do the right thing, and soon, but doubt has begun to grow. The other day, while considering whether or not to share an article that showed how gay couples are hurt by marriage bans, I thought, “What if the courts ultimately go against us, and force us to engage the public in a long, uphill battle to persuade the public for us.” So, I shared it – might as well get started. For those of us in the south, it will be a long time before public opinion will be sufficiently in our favor to overturn the bans.

Priya Lynn

August 21st, 2014

I’m with you too Eric. Given the way the U.S. supreme court has twisted law and logic to “justify” conservative rulings such as in the abortion clinic buffer zone case and the ones you mentioned I think they’re going to rule against marriage equality.

Mark F.

August 22nd, 2014

@Priya Lynn. You do realize that the “ultra-conservative” Ruth B. Ginsberg joined the UNANIMOUS majority in the abortion buffer zone case, don’t you?

I think you can read too much into this decision to grant a stay. It may be a majority of the court just wants to avoid a de facto legalization of gay marriage prior to them taking a case and making an official ruling.

@ Eric How Hobby Lobby could possibly be used in a same sex marriage case is beyond me.

On the other hand, a positive eventual Scotus decision is hardly assured.

Priya Lynn

August 22nd, 2014

Mark, like many I was surprised all the liberals went along with eliminating the buffer zone in the abortion case, particularly given the double standard that the supreme court upholds the constituionality of them having a much larger buffer zone than the abortion clinics did.

The way I heard it explained (which sounds plausible to me) is that the liberals joined with the conservatives on the abortion clinic buffer zone decision because they were afraid if they voted for the buffer zone the conservatives on the court would outvote them and then out of spite also eliminate the 8(?) foot moving personal buffer zone surrounding clinic patients.

Eric Payne

August 22nd, 2014

@Mark F:

In answer to your question: in Hobbby Lobby, SCOTUS determined a legal entity other than the individual is guaranteed the freedom of expression of religious belief, namely “the corporation.”

In Town of Greece, SCOTUS upheld “tradition” as being justification enough for the town of Greece, NY, to continue opening all its meetings, public and private, with denominational Christian prayer.

Looking at the thinking behind those two decisions, I can easily see SCOTUS upholding marriage inequality in the states, and using as its “out” the twisted logic: “The federal government is not banning marriage equality; in fact the federal government recognizes all legal marriages.

“Marriage law has long been the purview of the states.

“As states have shown, state law and state constitutions can be changed by a vote of the residents of that state; the federal government is not infringing upon that right.”

IOW: What is seemingly a violation of the 14th Amendment’s Full Faith and Credit Clause is not a violation, as states can, and do, rely upon the state electorate to make decisions for that state, and the government is not stopping them from doing so. They could even go further, especially in Utah, and write a decision which heavily favors the tradition of the state, and the overwhelming religious belief of the residents of that state.

I think a SCOTUS-calendared appeal of the 10th Circuit’s ruling in Utah is not NEARLY the slam-dunk people think it’s going to be… and it’s all going to depend on whether Kennedy, on the day voting is taken on the decision, wakes up a balanced jurist (as he did in Lawrence v. Texas or wakes up a Roman Catholic, as he did in Burwell v. Hobby Lobby.

Richard Rush

August 22nd, 2014

“Marriage law has long been the purview of the states.”

That may be true for the minor details of marriage, but for the major issues, not so much.

One of the Federal government’s conditions for Utah obtaining statehood was writing a ban on polygamy into the state constitution.

And everyone is familiar with the Loving v. Virginia decision.

It would be fun to watch a state define marriage as (for example) only for couples certified as fertile, and then see if SCOTUS can overrule it faster than I can blink.

Matt Rogers

August 22nd, 2014

According to this order, the stay will “terminate automatically” if SCOTUS rejects a petition for certiorari. This would probably be McQuigg’s petition, since it has already been filed, and there’s a fair chance that it will be rejected for lack of standing. If the petition is granted, the stay will end when SCOTUS sends down its decision. As I read the order, it doesn’t change much, except that it opens up the possibility that Virginia marriages could begin surprisingly soon.

enough already

August 24th, 2014

I’ve followed the ‘expert’ opinions of every single equal rights case here and across the major gay blogs for years now.
Sadly, the Supreme Court decisions have had very little in common with the ‘expert’ analysis so many of us have given. HobbyLobby should have been a much greater shock to us queers than it was.
Because the Chief Justice has a nice smile and because he doesn’t foam at the mouth, we’ve consistently underestimated how deeply Christian the Robert’s court is. The majority is absolutely determined to bring an end to gay rights and the right of a woman to dominion over her own body.
By not voting in mid-terms and only voting for ‘perfect’ candidates in the four-year races, we queers (and our natural allies, young women) have brought this sorry situation upon ourselves.
We’re in big, big trouble. The danger is far greater than the ‘experts’ among us realize.

Mark F.

August 25th, 2014

@enough already

“The majority is absolutely determined to bring an end to gay rights…”

How so? Even Scalia believes states have a right to have same sex marriage. A loss at SCOTUS on same sex marriage would just mean we would have a long slog getting it enacted state by state.

enough already

August 25th, 2014

Mark F.,
Equal rights for queers is not one of those ‘issues’ (as the Americans like to say) on which good people may be of different opinions.
Either we are full citizens or we are not.
The conservatives on this Supreme Court could have given us full human and civil rights years ago, had they so wanted. That they have not makes clear their animus.
Those of us queers who have insisted that we will be treated fairly need to hear five words: Citizens United and Hobby Lobby.
As for the federalism argument you propose, it’s mob rule.

Mark F.

August 25th, 2014

@ enough already

Again, my point is simply that the SCOTUS can’t “bring an end” to gay rights. I didn’t address the merits of the federalism argument.

enough already

August 25th, 2014

I get your point and I disagree. The Supreme Court very well can find a way to do so.
A Court which can find corporations entitled to Christian religious rights is perfectly capable of imposing a Christian theocracy upon us.
Maybe it’s an age difference – I’m in my mid-50s and have seen first hand that we have no rights in this country when a Christian does something nasty to us.

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