Stay only a delay for same sex marriage

By Susan Robertson, The Virginia Gazette, Williamsburg
McClatchy-Tribune Information Services

Aug. 22--WILLIAMSBURG -- The U.S. Supreme Court effectively pushed pause on the legalization of same-sex marriage Wednesday, and one local expert says that whether the justices opt to hear a case questioning the constitutionality of state bans could speak volumes about how the issue will be resolved.

Same-sex couples were expected to be lined up outside the Williamsburg-James City Courthouse Thursday morning to legalize their unions. The stay issued by the high court late Wednesday afternoon blocked an earlier decision that overturned the 2006 amendment to Virginia's constitution banning same-sex marriage. Couples would have been able to apply for marriage licenses and wed starting Thursday morning had the Supreme Court not acted.

Allison Orr Larsen, an associate professor at the College of William and Mary School of Law and an expert on constitutional law and federal courts, said the stay was expected based on the Supreme Court's earlier decision to stay a federal ruling striking down Utah's ban on same-sex marriage. She said now it's a question of whether the high court chooses to hear the Virginia case, the earlier Utah case, or one of several others she noted are in the pipeline.

"The stay is only in place until the Supreme Court decides if it will hear the case or a case like it, like the one in Utah," she said. "If they decide not to, then the stay goes away and (same-sex marriage) becomes legal in Virginia."

The high court granted the stay requested by a Prince William County Circuit Court clerk, delaying a ruling made late last month by the 4th Circuit Court of Appeals in Richmond to strike down Virginia's ban. No explanation about the order was given by the court, according to a report from the Associated Press.

"Everybody and myself included expected the Supreme Court to rule on that because it's what they've done in two other states," said Del. Brenda Pogge, R-James City, in a phone interview Wednesday. "It appears what they are doing is that they are going to settle the issue once and for all for the whole country."

While it may have been expected, the delay in the start of same-sex marriages in Virginia was disheartening for many.

"It is disappointing that the Supreme Court stayed the 4th Circuit Court's decision," said James Parrish, executive director of Equality Virginia, in a statement issued Wednesday. "Lesbian and gay Virginians have waited long enough for the freedom to marry. Loving couples -- and families -- should not have to endure yet another standstill before their commitment to one another is recognized here in Virginia."

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Betsy Woolridge, clerk of Williamsburg-James City Circuit Court, said phones in her office had been ringing off the hook since Monday with questions about when same-sex couples would be able to obtain a marriage license, and what documentation would be required for unions from other states to be recognized here. She said Wednesday morning that calls had been steady, and before the stay order she anticipated couples would be waiting outside Thursday before the courthouse opened at 8 a.m.

Local activist John Whitley commented that the timing of the stay, which he conceded was expected, was poor.

"The (Chief Justice John) Roberts Supreme Court was anticipated to issue the stay but their releasing it so late in the day shows their disdain for the rights and dignity of LGBTQ folk," he said. "The Roberts Court has intentionally acted to undermine due process and equal protection. These rights are set by the Constitution...the very same rights and document the Supreme Court justices swore their allegiance to protect."

In a statement Wednesday, the American Civil Liberties Union of Virginia also expressed its disappointment that the 14,000 couples it represents will have to continue to wait to take part in "the fundamental right to marry." It noted that, until same-sex unions are legally recognized, some couples will remain without access to their partner's health insurance, the right to make medical decisions for their partner and numerous other rights afforded to traditional couples.

Pogge, a proponent of the 2006 amendment banning same-sex marriage, said the belief among politicians and Supreme Court watchers seems to be that the decision may be returned to individual states. If that occurs, Pogge said her understanding is that Virginia's amendment would stand, and another amendment would be required to undo it. She was unsure if Virginia would stick to its 2006 decision, which passed with 57 percent of the vote.

Larsen explained that the Fourth Circuit Court of Appeals ruled that laws banning same-sex marriage violate the Fourteenth Amendment because everyone has a "fundamental right to marry." In order for the decision to be returned to individual states, Larsen said the U.S. Supreme Court would have to elect to hear one of the cases and rule that the federal court ruled incorrectly, finding that the Constitution has no bearing on the issue. If no case is heard by the high court, then the stay expires and the federal court's ruling would stand, legalizing same-sex marriage in the Fourth Circuit, which includes Virginia, West Virginia and the Carolinas.

Should a case be heard, how quickly the decision is made is hard to say, Larsen added. She noted the court is on until the end of September, and that even if a case is taken up this term, it's unlikely a decision would be made before next June.

Time frame aside, Larsen believes same-sex marriage will eventually be legalized nationwide, thanks to momentum behind the issue. She also feels it would be fitting if the Virginia case was the one that gave marriage equality to same-sex couples. It was a Virginia case, Loving v. Virginia, that invalidated laws prohibiting interracial marriage.

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"Ten years ago it was quite extraordinary for a state to allow gays and lesbians to marry, but today nineteen states (plus Washington D.C.) authorize same sex marriage, and a growing number of people think the Constitution does not tolerate banning it," she said. "I think in the not too distant future same sex marriage bans across the country will be laws we study only as history."

Robertson can be reached at 757-345-2342.


(c)2014 The Virginia Gazette (Williamsburg, Va.)

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