Virginia Same-sex Marriage Ruling Expected Any Day, But What Happens Next?
It’s been two months since the fourth district of appeals heard two challenges against Virginia’s constitutional ban on same-sex marriage, and legal experts are saying a decision could come any day now.
The number of recent court decisions related to same-sex marriage around the country has exploded in recent months, with nine courts from Texas to Wyoming all striking down bans in their respective territories.
Mike Hamar, a Norfolk based attorney with a history in LGBTQ rights cases, said the judges who heard the case could have been waiting for the 10th Circuit court to make their decision. This case, which was ruled on June 25th, struck down Utah’s ban at the federal appeals level.
But no matter the previous outcomes of court cases, Hamar thinks it’s mainly the SCOTUS decision on Windsor which will impact the fourth circuit. That and the anti-gay animus expressed by lawmakers could also play a role.
“Seeing comments from (former Attorney General Ken) Cuccinelli and Delegate Bob Marshall (co-author of the ban on same-sex marriage) and the folks at the Family Foundation,” said Hamar of the anti-gay comments coming from same-sex marriage opponents during the fight against the ban. “I would think it would be difficult to hold that Virginia can do what the supreme court ruled Congress could not do.”
Once the ruling is issued, and if the judges strike down the ban, the next question will be if the courts will stay the decision pending a higher court, or immediately allow same-sex marriage.
AG Mark Herring voiced his support for a stay in a statement after the February ruling when the Judge in Norfolk’s circuit court issued a stay pending appeal.
“While I deeply understand that it is difficult and unfair to ask loving couples to wait even a day longer to exercise their fundamental rights,” said Herring. “Our commitment to the rule of law dictates that this process moves forward in the orderly way that a stay will provide.”
But a recent trend has emerged with local ACLU groups and other advocates asking judges not to stay ruling and allow same-sex marriage.
The ACLU asked the Wisconsin district judge for no stay in May, and marriages went on for eight days until a federal judge stepped in and issued a stay. Again, in Indiana’s ruling, the ACLU asked the judge to deny the stay, but a federal judged issued one days later.
In a unique case, a Tennessee judge issued a stay on same-sex marriages for all except three couples who sued to have their out-of-state marriages recognized.
In Utah, same-sex marriage licenses were issued for 17 days before a stay was issued by the Supreme Court - sadly those marriage are now in limbo until a higher court weighs in.
In Idaho, U.S. District Magistrate Judge Candy Dale struck down the state’s ban and denied a stay saying the public interest does not ”favor preserving a status quo that deprives individuals of their constitutional rights.”
However, a federal appeals court issued a stay seven days later.
In early June, the ACLU of Virginia said they were unsure if they would support the request for a stay saying “We will have to see exactly what the Fourth Circuit says and respond appropriately.”
“The Attorney General of Virginia… failed to defend the Constitution of Virginia… when a legal challenge was undertaken to redefine marriage in federal courts”January 17, 2017
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