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Supreme Court Issues Last-Minute Stay in Va. Gay Marriage Case

By Brett Snider, Esq. on August 21, 2014 | Last updated on March 21, 2019

The U.S. Supreme Court issued a last-minute order halting gay marriage in Virginia on Wednesday.

In an underwhelming one-paragraph order, the High Court imposed a stay on the 4th U.S. Circuit Court of Appeals' ruling, effectively putting Virginia gay marriage on "pause" until it can be appealed. The Washington Post suggests that the Supreme Court doesn't want to implicate itself in making a decision on marriage by refusing to act.

Was this Virginia decision really all that surprising?

Dramatic but Not Shocking

The High Court may not be above drama, as Wednesday was practically the last day in which a stay could be imposed before the 4th Circuit's ruling went into effect. Although this order may have been a buzzer-beater, it wasn't exactly shocking... but not for the reasons you might expect.

Yes, the Court has a number of notable conservatives who've made their disdain for gays and same-sex marriage clear not only in their personal lives but also jurisprudence -- namely Justice Antonin Scalia. But the decision to halt gay marriages until the Supreme Court can hear the appeal in Virginia's case isn't necessarily a partisan one.

In January, Justice Sonia Sotomayor, by all preliminary accounts in favor of gay marriage, granted an order stopping gay marriages in Utah after the 10th U.S. Circuit Court of Appeals refused to stay its decision. The reasoning may be that allowing gay marriages before the Supreme Court can rule on the issue may create a chaotic legal situation. According to the Post, even Virginia's Attorney General, who has vowed to fight the marriage ban, asked the High Court to put gay marriages on hold pending appeal.

So What Now?

While the Court's order doesn't say much, it does mention that the stay was issued in anticipation of an appeal to the Supreme Court, meaning Virginia should be appealing to the High Court soon. The order also says that should the Court refuse to hear the appeal, the stay will terminate automatically.

For Virginia same-sex couples hoping to marry, this means that there are four possible outcomes:

  • If the Supreme Court refuses to hear the case, then gays can marry;
  • If the Supreme Court hears the case and agrees, then gays can marry;
  • If the Supreme Court hears the case and reverses, then gays can't marry; and
  • If the Supreme Court hears the case and dismisses it on a technicality, then gays can probably marry (see California's Prop 8 case).

Whatever the outcome, Virginians may have to wait a while longer for the gay marriage issue to be resolved.

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