A Virginia Circuit Court Clerk has asked the U.S. Court of Appeals for the Fourth Circuit to put its recent decision striking down Virginia’s marriage laws on hold pending a request to the U.S. Supreme Court to review the case. On August 1, Alliance Defending Freedom (ADF) attorneys, who represent Prince William County Clerk of Circuit Court Michele B. McQuigg, asked the Fourth Circuit to stay its decision in Bostic v. Schaefer, while they file a petition for a writ of certiorari with the U.S. Supreme Court. As we reported last week, a three-judge panel of the Fourth Circuit ruled 2 to 1 that “Virginia Marriage Laws violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment….” Absent a stay, the decision is scheduled to take effect on August 18.
In the motion requesting the stay, ADF notes that, “In a similar case involving Utah’s marriage laws, the Supreme Court stayed the lower court’s ruling and thereby affirmatively signaled to the lower courts that they should stay enforcement of judgments in similar cases pending the exhaustion of appeals.” Additionally, the motion notes that the U.S. Court of Appeals for the Tenth Circuit stayed its recent decision against Oklahoma’s marriage laws, pending appeal to the Supreme Court.
The motion also references the potential impact of the Bostic v. Schaefer case on similar challenges to the marriage laws of other states in the Fourth Circuit, including North Carolina. “[T]he effect of this Court’s mandate will extend beyond this case to similar cases pending in this Circuit,” the motion explains. “If the Supreme Court ultimately disagrees with this Court’s split opinion, staying the mandate will prevent this Court’s decision from bringing about temporary results in those cases that will all need to be undone. In short, staying the mandate will allow the orderly and dignified resolution of this important constitutional question not only in Virginia, but throughout this entire Circuit.”
If the Fourth Circuit grants McQuigg’s request for a stay in the Bostic case, the ruling will be on hold-and Virginia’s marriage laws will remain intact-pending the U.S. Supreme Court’s response to the petition for review. A stay in the case would also be good news for other states in the Fourth Circuit, including North Carolina, where marriage-related lawsuits are pending in other federal courts.
Just hours after the Fourth Circuit issued its ruling in the Virginia case, North Carolina Attorney General Roy Cooper announced at a press conference that his office would no longer defend North Carolina’s marriage protection laws against four pending federal lawsuits, describing the effort as “futile” in light of the Bostic decision. Cooper also said he believes the issue will ultimately be decided by the U.S. Supreme Court.
It is unclear at this time whether the President Pro Tempore of the N.C. Senate and the Speaker of the N.C. House and will exercise their right to jointly intervene to defend the State’s marriage laws, as allowed by a law passed in 2013. In response to Cooper’s announcement, Senate President Pro Tempore Phil Berger said in a statement that, “North Carolinians overwhelmingly voted to put the marriage amendment into our state constitution and expect their attorney general to uphold his oath of office by defending that constitution.” Although Sen. Berger said legislative leaders do not have plans to intervene in the marriage lawsuits at this time, he added, “If it becomes necessary, we will consider it.”