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County clerk seeks stay in Va. same-sex marriage ruling

County clerk seeks stay in Va. same-sex marriage ruling
RICHMOND, Va. — A county court clerk in northern Virginia on Friday sought to delay a federal appeals court ruling striking down the state’s same-sex marriage ban.

Attorneys for Michelle B. McQuigg, clerk of Prince William County’s Circuit Court, asked for the delay while the decision was appealed to the Supreme Court.

Michele B. McQuigg
Michele B. McQuigg

They argued the delay would “ensure the orderly resolution of the important constitutional question presented in this case while avoiding uncertainty for the public and irreparable injury to the commonwealth.”

The American Civil Liberties Union of Virginia and Lambda Legal, in a filing Friday, opposed the stay.

A panel of the 4th U.S. Circuit Court of Appeals in Richmond ruled 2-1 Monday that Virginia’s gay marriage ban approved by voters in 2006 is unconstitutional. It typically grants stays while cases are appealed to the Supreme Court.

Without a stay, marriage licenses for Virginia same-sex couples could be issued 21 days after the ruling.

A statement from the Alliance Defending Freedom, which is representing McQuigg, said the amendment was passed by a majority of Virginians affirming “marriage as a man-woman union.”

“The people of Virginia and every other state are free to preserve that understanding of marriage in their laws,” the statement continued.

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They could have asked the full 4th Circuit to review the case. Instead they said they would appeal to the Supreme Court to avoid “legal uncertainty and confusion” that has occurred in other states that have had conflicting rulings on gay marriage.

“In short,” they wrote, “staying the mandate will allow the orderly and dignified resolution of this important constitutional question not only in Virginia, but throughout the entire circuit.”

In Colorado, for instance, the state’s gay marriage ban is still the law although recent rulings in federal and state court have found it to be unconstitutional. Those rulings have been put on hold during appeals.

In a statement, the American Foundation for Equal Rights, which argued against Virginia’s gay marriage ban, said every court that has heard the issue has agreed: “There is no good reason to deny gay and lesbian Virginians and Americans the freedom to marry.”

Attorney General Mark Herring (D-Va.)
Attorney General Mark Herring (D-Va.) has refused to defend Virginia’s same-sex marriage ban. AP

“Opponents of equality may try to continue the fight, but they will fail,” the foundation’s executive director, Adam Umhoefer, said in a statement.

The 4th Circuit was the second federal appellate court to overturn gay marriage bans and is the first to affect the South, which is more culturally conservative than other regions of the U.S.

Attorney General Mark Herring had refused to defend that state ban when he took office in January and sided with opponents in seeking its end.

“Attorney General Herring believes the district and appeals courts ruled correctly, but he has said throughout this process that a stay is an appropriate and orderly way to proceed while appeals are pending in case a decision ultimately goes against marriage equality,” spokesman Michael Kelly wrote in an email.

The 4th Circuit ruling applied to West Virginia, Maryland, and the Carolinas, where the attorneys general split on what they’ll do next.

Gay marriage proponents have won more than 20 legal decisions around the country since the U.S. Supreme Court struck down part of the federal Defense of Marriage Act last year. Most are still under appeal. More than 70 cases have been filed in all 31 states that prohibit same-sex marriage. Nineteen states and the District of Columbia allow such marriages.

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The U.S. Supreme Court could have at least five appellate decisions to consider if it takes up gay marriage again in its next term, beginning in October.

Besides the confusion of ending a gay marriage ban, attorneys for McQuigg said there were practical reasons for a delay.

“In addition, public officials throughout the Commonwealth would have to revise forms, policies and rules to accommodate the district court’s injunction, but may have to revise them back if the Supreme Court grants a stay or ultimately upholds the Commonwealth’s man-woman marriage laws,” attorneys wrote.

Alliance Defending Freedom is also representing a Pennsylvania county clerk in her efforts to overturn that state’s same-sex marriage ruling.

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