The big news of the week in the Mid-Atlantic region is that the Fourth Circuit has declined to issue a stay pending appeal in Bostic, the same-sex marriage case out of Virginia. For those who were comatose over the past few weeks, a three-judge panel ruled against the state's ban on gay marriages.
The county clerks who are defending the law have filed an appeal with the Supreme Court and want the panel's decision put on hold pending that appeal. Even Virginia Attorney General Mark Herring, who declined to defend the law, asked for a stay, as even a brief period of legalized gay marriage, as we saw in Utah, leads to confusion regarding the status of those marriages and the extension of benefits to same-sex spouses.
And yet, the panel declined to issue a stay, reports The Associated Press. And if the Supreme Court doesn't step in, gay marriage will be legalized in Virginia (and possibly throughout the Fourth Circuit) on Wednesday. Is there any way the Court doesn't hit the pause button?
No, Not After Utah
Again, unless you've been completely out of commission for the past few months, you probably know that the Tenth Circuit also ruled (twice) in favor of gay marriage. Before the Tenth Circuit addressed the merits of the case, both that court and the district court refused to issue a stay, necessitating a SCOTUS order.
So yes, the Fourth Circuit has refused to issue a stay. And if the Supreme Court doesn't step in, Virginia's ban will be DOA as early as next Wednesday.
But the Supreme Court almost certainly will issue a stay. And it will likely take the appeal, or one of the many other substantively similar appeals, during its first conference in late September.
What's the Deal, Fourth Circuit?
Of course, this begs the question: why did the Fourth Circuit refuse to issue a stay, even though the Supreme Court had done so in the Tenth Circuit case.
Technically, the Supreme Court's stays were without elaboration or justification -- they were simple orders without any comment whatsoever. It's hard to read such one-liners as commanding precedent. At least one trial judge that I can recall has refused to issue a stay in a gay marriage case on that basis.
More likely, however, is the simple fact that if the panel had issued a stay, they would be the "bad guys," the ones who denied Equal Protection rights to same-sex couples, rights that were so significant that they overcame the state's proffered compelling interests that they argued justified recognizing only heterosexual nuptials. By declining to issue a stay, the panel saves face, knowing that the Supreme Court is likely to jump in and issue a stay regardless.
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- Bostic Aftermath: Stay Sought, States React Differently (FindLaw's Fourth Circuit Blog)
- Pamela Harris Confirmed; Republican Senator Exasperated (FindLaw's Fourth Circuit Blog)
- Appeal in the Middle of Trial Was Ineffective, 4th Cir. Rules (FindLaw's Fourth Circuit Blog)