After a federal court refused to “stay” a decision overturning Virginia's marriage amendment, supporters of traditional marriage are hoping the U.S. Supreme Court will intervene by August 20.
Last Wednesday, the 4th Circuit Court of Appeals denied the request for stay, ruling that same-sex “marriages” could begin on August 20. The decision came weeks after a three-judge panel ruled 2-1 that the marriage amendment violates constitutional guarantees of equal protection and due process.
Nearly 60 percent of voters approved the amendment in 2006.
The Alliance Defending Freedom (ADF), which represented Prince William Circuit Court Clerk Michele B. McQuigg in court, told The Washington Times that the plan is to file an appeal “as soon as possible.” Lawyer Ken Connelly indicated optimism that the Supreme Court would stay the court decision, as happened after Utah's amendment was overturned.
“We would expect, being no substantive difference, that the Supreme Court would grant the application,” he said.
Heritage Foundation Legal Fellow Andrew Kloster was likewise confident that the Supreme Court would stop same-sex “marriages” from taking place, pointing out that in a Utah case, the court unanimously granted a stay.
He told LifeSiteNews that while there are differences between the Utah and Virginia cases, the former provides “precedent for a stay.” He said that “federal courts issue stays all the time. It's unusual to not issue a stay.”
Meanwhile, supporters of same-sex “marriage” are crossing their fingers that the Supreme Court will leave the lower court decisions standing. “I don't believe that a stay is warranted,” Kevin Naff, an editor for The Washington Blade, told LifeSiteNews. “Virginia's neighbors in Maryland and D.C. are already getting married and they shouldn't lose that status when they hop a train and cross the state line.”
Naff said he believes the Supreme Court will tackle the issue of marriage redefinition head-on in 2015. “I'm confident that by this time next year, gay and lesbian couples will be able to legally wed in all 50 states,” he said.
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Virginia's marriage battle has been complicated by the refusal of Attorney General Mark Herring to defend the state's Constitution. Herring, who was elected in 2013, had promised to uphold the amendment despite his views on same-sex relationships, according to The Blaze. However, he changed his stance within weeks of taking office.
Herring's decision has led to bipartisan calls for impeachment. He has defended his decision by saying that he pledged “to put the law and put Virginians first. … It’s about what the law requires here, and we have concluded, I have concluded, that the law here is unconstitutional, and I think the Supreme Court … would find the law unconstitutional.”
However, the Supreme Court has yet to rule on whether the legal definition of marriage should continue to be a bond between a man and a woman. Its 2013 Windsor ruling, which overturned the Defense of Marriage Act, left the matter of defining marriage up to each state.
According to Kloster, Herring should be defending the state amendment. “The general duty of a government lawyer tasked with defending a law, the general norm is whether or not you agree with the law has no bearing on your duty to uphold that law in court. By Herring not defending the law, he is saying that believing the Virginia law is constitutional is crazy.”
Herring's oath of office includes a declaration that he will “support the Constitution of the United States, and the Constitution of the Commonwealth of Virginia, and that I will faithfully and impartially discharge all the duties incumbent upon me.”
“Government attorneys are ethically required to defend laws in court unless there are no reasonable arguments that can be made about their constitutionality,” continued Kloster. “This is clearly not the case with Virginia's marriage law.”
Likewise, said Kloster, “an attorney defending a murder defendant has an ethical duty to zealously defend his client, even if he thinks the client is guilty and doesn't support murder. The state of Virginia is Herring's client.”
When asked for comment about the 4th Circuit ruling and Herring's refusal to defend the state's amendment, Ed Gillespie, former Republican National Committee Chairman and current GOP candidate for the Senate in Virginia, told LifeSiteNews that he supports federalism on the matter of marriage. “I love and respect people for who they are,” said Gillespie, who is Catholic. “I believe marriage is between one man and one woman, but I'm running for federal office and believe marriage is a matter for states to decide.”
The Alliance Defending Freedom has taken up the defense of Virginia's Constitution in Herring’s stead. The ADF takes all cases “pro bono,” which means taxpayers will see savings from Herring's decision to not spend state resources on the case.