The 4th U.S. Circuit Court of Appeals clarified Thursday that same-sex couples in Virginia may get married beginning next Thursday at 8 a.m. unless the U.S. Supreme Court intervenes and puts a hold on the ruling.
The court on Wednesday denied a motion by one of the defendants in a federal case seeking to overturn Virginia’s same-sex marriage ban to stay its recent ruling that found the ban unconstitutional. The Virginia Attorney General’s Office said the hold would be lifted next Wednesday. In its clarification, the 4th Circuit pushed that back a day.
In a 2-1 decision July 28, the three-judge panel had agreed with a lower court to strike down the 2006 amendment to the Virginia Constitution that defines marriage as between a man and a woman.
Legal experts believe that the Supreme Court will grant an appeal by the defendant, Michele B. McQuigg, circuit court clerk in Prince William County, to stay the ruling until it resolves the issue of same-sex marriage for all states.
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Attorneys of the Alliance Defending Freedom representing McQuigg filed the appeal Thursday afternoon.
But a decision by the highest court is unlikely to come until next week, said Carl Tobias, a professor of constitutional law at the University of Richmond School of Law.
“The other side has to have time to respond,” Tobias said.
The court filings will then go to Chief Justice John Roberts, who is responsible for the 4th Circuit.
“Roberts can decide himself, but he will probably refer it to the whole court, as Justice Sonia Sotomayor did with Utah,” Tobias said.
In the Utah case, a federal judge struck down the state’s ban last year without staying his ruling, prompting 1,400 same-sex couples to marry in the following days, until the Supreme Court granted the motion to stay the decision. The case is also pending before the court for a final resolution.
Once the justices read the papers of the Virginia case, they will decide whether to grant the stay and issue an order. While the Supreme Court is not in session, the justices communicate electronically, Tobias said.
“I expect the order to resemble the 4th Circuit stay denial in that it will say ‘granted’ or ‘denied’ with no explanation,” Tobias said, adding that he expects the decision next Wednesday, or possibly one or two days earlier.