The three-judge panel of the U.S. Court of Appeals for the 4th Circuit that decided the case of Bostic v. Schaeffer, striking as unconstitutional Virginia’s ban on same-sex marriage, denied a motion by one of the defendants, Prince William County Clerk Michele McQuigg, to stay its mandate beyond the short time that it had authorized in its decision. That effectively places the question whether same-sex couples can begin marrying in Virginia soon into the hands of the Supreme Court, and initially into the hands of Chief Justice John G. Roberts, Jr., if any party in the case asks him to grant a further stay. (Update: Alliance Defending Freedom, representing McQuigg, filed an application for a stay on August 14. Chief Justice Roberts notified the parties on August 15 that the full Court will consider the request, and that any additional papers or argument should be submitted by 5 pm on Monday, August 18. Since the 4th Circuit’s mandate goes into effect at 8 am on August 21 if not stayed, presumably the Court will issue a ruling on the application before then.)
The case is in a somewhat odd posture. The lawsuit was originally filed against the Republican governor and attorney general of Virginia last July. Subsequent motion practice resulted in dropping those officials as defendants and substituting the State Registrar, Janet M. Rainey, and Norfolk County Clerk George E. Schaefer, III, whose office had denied a marriage license to one of the plaintiff couples. Then Democrats were elected governor and attorney general, and Prince William County Clerk Michele B. McQuigg was granted intervenor status to defend the marriage ban when it seemed likely that neither the new governor nor the new attorney general would be inclined to do so. After the inauguration, McQuigg’s fears were confirmed, as the governor and attorney general announced they would not defend the marriage ban. Before the trial court, the state joined with the plaintiffs in seeking invalidation of the marriage ban, which they achieved.
The two clerks appealed to the 4th Circuit. At the oral argument, Solicitor General Stuart A. Raphael represented the Attorney General’s office, argued in support of the plaintiffs, and the 4th Circuit affirmed the district court, by a vote of 2-1, on July 28. Clerk McQuigg announced that she would file a cert petition rather than seek en banc review in the 4th Circuit (where a majority of the judges are Democratic appointees). She had 90 days to do so. But then Attorney General Mark Herring announced that he would promptly file a cert petition to ensure that the case is lined up for consideration by the Supreme Court when it reconvenes in the fall. However, he supported a motion by McQuigg to stay the ruling pending an ultimate determination by the Supreme Court. The plaintiffs, of course, opposed the stay, arguing that any delay in the implementation of the right to marry for the plaintiffs (who include not just the two couple plaintiffs in Bostic but also the certified plaintiff class of all same-sex couples in Virginia in the Harris v. Rainey case, which was joined to the Bostic case for argument) worked an irreparable injury. Herring’s cert petition was filed with the Supreme Court on August 8.
Evidently, the plaintiffs’ argument was persuasive to a majority of the 4th Circuit panel, as Judges Floyd and Gregory voted to deny the motion over the dissent of Judge Niemeyer, who had dissented on the merits as well. This means that the 4th Circuit’s temporary stay will expire next Tuesday night, and same-sex couples could theoretically begin obtaining marriage licenses on Wednesday morning, while couples already married in other jurisdictions could initiate whatever measures they sought to exercise their marital recognition rights (e.g., filing step-parent adoption petitions).
The justice of the Supreme Court to whom motions for stays from the 4th Circuit are directed is Chief Justice Roberts. Any party can file such a motion, and it would be surprising if neither Herring nor one or both of the Clerks file such a motion. It would also be surprisingly, in light of the Court’s conduct on stay motions so far this year, if such a stay were not granted. So people should not get their hopes up too much for a quick implementation of the marriage ruling.
Also, so far the Supreme Court has not added the pending marriage equality cert petitions to the agenda for its September 29 conference. One suspects they are going to put off considering the petitions right away, which is the course they followed in 2012 with the DOMA cert petitions. Although they already had petitions on file early in the term, new petitions subsequently arrived from various lower court decisions, and the Supreme Court discussed the DOMA petitions at several conferences before finally announcing their cert grant in December 2012. In the case of marriage, we have still to hear from the 6th Circuit, which heard arguments on August 6 in cases from four states, the 7th Circuit will be hearing arguments on August 26 in cases from two states, and the 9th Circuit will be hearing arguments in cases from three states on September 8. So the Supreme Court might just hold the cert petitions with the expectation that there will also be petitions from decisions by those circuits in coming months. Or, considering the stays in effect and the number of people eagerly anticipating a decision, they might move relatively quickly. Since they have no time limits governing their action, it is all a matter of speculation. But it seems unlikely that the Court would fail to take a marriage equality case for review this term, which would most likely mean a decision by the end of June. Justice Ginsburg has already told interviewers that she thinks the Court will not duck the same-sex marriage issue this term.