The Supreme Court issued an unsigned order today staying the 4th Circuit’s mandate in Bostic v. Schaefer, the Virginia marriage equality case. The 4th Circuit panel had rejected Prince William County Clerk Michele McQuigg’s motion to stay pending Supreme Court review, and McQuigg promptly renewed her request for a stay by filing the motion with Chief Justice John Roberts. Roberts requested input from the other parties, and then referred the matter to the full Court, which issued the unsigned order on August 20. If the order had not been issued, the 4th Circuit’s ruling would have gone into effect tomorrow morning, August 21, at 8 am.
Virginia Attorney General Mark Herring has already filed a petition for certiorari with the Supreme Court seeking review and affirmance of the 4th Circuit’s decision. He had supported McQuigg’s motion for a stay. The plaintiffs in the underling cases, represented by the ACLU and Lambda Legal, had opposed the stay request, and urged the Court that if it were to stay the 4th Circuit ruling, it move quickly to grant cert and decide the case on the merits.
County clerks and various licensed marriage celebrants in Virginia were already gearing up for the possibility of issuing licenses and performing ceremonies on August 21, since Virginia law does not require couples to observe any waiting period after getting their licenses. But the Supreme Court’s granting of the stay was really no surprise, because it stayed the 10th Circuit’s Utah marriage ruling and, as lower courts have generally acknowledged, sent a clear signal that if a state wants to appeal a marriage equality ruling, the Supreme Court is willing to stay the ruling pending appeal.
If one applies the “guidelines” that the Supreme Court has set out in the past as its standard for granting stays pending appeal, then one can attribute to this stay ruling a view among the Justices that it is likely that a petition for certiorari will be granted in a marriage equality case this term, that there is at least a fair possibility that the Supreme Court might reverse the 4th Circuit’s decision, that irreparable harm to the state might result from allowing the 4th Circuit’s decision to go into effect and the balance of equities weighs in favor of the party seeking the stay. But I would question how stringently the Court is applying these standards, and I think the issuance of this stay is more about politics and prudence than about applying these tests.
On the one hand, it seems highly likely to me that the Court will grant cert in one of the pending marriage equality cases. Since U.S. v. Windsor last year, the Court’s latest word on same-sex marriage, was a 5-4 decision, there is certainly a “fair” possibility that the swing voter in the prior case could swing the other way on this one, and marriage equality proponents should not count any chickens before they are hatched. But the rhetoric of Justice Anthony Kennedy’s opinions in Windsor, Lawrence v. Texas and Romer v. Evans strongly suggests that he may rule similarly in favor of the plaintiffs-respondents if the Court grants cert in the Utah, Oklahoma or Virginia cases. As to irreparable harm, unless one accepts without question the contention that a state suffers irreparable harm every time a federal court blocks the enforcement of a state law, no matter how ill-conceived or potentially unconstitutional is the law, I have trouble seeing it. Now that same-sex couples have been getting married in 19 states and the District of Columbia, in some states for several years, it is possible to see quite clearly that allowing such marriages to take place or be recognized does not cause any irreparable harm to the states. In terms of the balance of the equities, it seems pretty clear that the harm to a state is to its “sovereign dignity” but will not adversely affect the public welfare or the economy of the state or its institution of marriage, whereas delaying the marriage rights of same-sex couples could clearly work irreparable injuries to them in terms of dignitary and economic losses, and even loss of life and liberty. So the balance of the equities on these stay petitions clearly favors the respondents, in my opinion.
At any rate, what the Supreme Court says, even without explanation of its reasoning, is binding upon all parties, so the 4th Circuit’s mandate is stayed.
In its Order, the Court is very specific in providing that the stay will automatically be dissolved if the Court denies the petition for certiorari that Clerk Michele McQuigg is expected to file. This suggests to me that if the Court decides to grant one of the other petitions, it will “hold” the McQuigg petition and neither deny nor grant it until it has decided on the merits the case that it accepts for review.
On the other hand, the Court is also very specific in stating that if the petition is granted, “the stay shall terminate upon the sending down of the judgment of this Court.” Perhaps, as Chris Geidner suggests in his Buzzfeed.com report on today’s Order, this is intended to avoid the court of appeals “jumping the gun” and allowing same-sex couples to start marrying right away upon announcement of the Supreme Court’s opinion, as happened in 2013 when the 9th Circuit lifted its stay shortly after the Supreme Court dismissed the appeal in Hollingsworth v. Perry on jurisdictional grounds. The big difference, of course, is that in Hollingsworth the stay had been granted by the 9th Circuit at the request of the appellants, so it was up to the 9th Circuit when to lift it. In this case, however, the stay is being granted by the Supreme Court (having previously been denied by the 4th Circuit), so it is the Supreme Court that sets the terms, and presumably the Court will not “send down” its judgment formally to the court of appeals until the time has expired for filing motions for reconsideration or for reargument. Thus, if the Supreme Court affirms the 4th Circuit, the Court will retain control over the timing of its decision going into effect. This seems like a pragmatic move, inasmuch as a sweeping Supreme Court marriage equality ruling will require the remaining 31 states that ban same-sex marriage to make whatever adjustments are necessary to their forms and procedures in order to facilitate the volume of license applications they may subsequently experience, as well as the filing of stepparent adoption petitions, employee benefit plan enrollment forms, etc., from already-married same-sex couples seeking recognition of their marriages. There might even be a small flood of pent-up divorce petitions….
To those unfamiliar with the workings of the Supreme Court and the appellate process, do not be misled by headlines reporting today’s development along the lines of “Supreme Court Blocks Virginia Same-Sex Marriages.” While it is technically true that the stay “blocks” same-sex couples from marrying in Virginia on August 21, this is not a ruling on the merits by the Supreme Court, and it does not represent a judgment by the Court that same-sex couples are not entitled to marry. It is a technical move by the Court to preserve its jurisdiction and the orderly appellate process by relieving the state of Virginia of the obligation to ignore its same-sex marriage ban until the Supreme Court has decided whether to weigh in on the controversy.
And, Justice Ruth Bader Ginsburg has already stated publicly her opinion that the Court will not “duck” a ruling on marriage equality this time around, as it did in 2013 in the California Prop 8 case. The pending cert petitions present no major jurisdictional impediment to a ruling on the merits. If the Court grants review in one of the marriage equality cases, there is likely to be a ruling on the merits before the end of the term that gets underway on October 6 — most likely sometime in the spring or early summer of 2015.