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Religious Tolerance logo

Virginia: Recognition of same-sex relationships & marriage equality

Part 14: 2014-AUG & OCT:
AUG-20: Supreme Court issues stay. Reactions.
OCT-06: Supreme Court refuses to hear appeal.

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"LGBT" is an acronym referring to the Lesbian, Gay,
Bisexual, and Transgender/Transsexual community.
SSM refers to same-sex marriage.

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This topic is a continuation from the previous essay

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LGBT symbol 2014-AUG-20: U.S. Supreme Court issues a stay:

As requested, the U.S. Supreme Court issued a stay on the 4th U.S. Court of Appeals' ruling that the ban on marriage by same-sex couples is unconstitutional. The stay was widely anticipated. The Supreme Court took the same action in Utah on 2014-JAN-06 in an almost identical situation.

The hopes and dreams of thousands of same-sex couples in Virginia were placed on hold. They were not able to marry on AUG-21, as they had hoped.

Chris Gacek is a Senior Fellow at the Family Research Council (FRC). The FRC is a conservative Christian para-church organization, which has been designated by the Southern Poverty Law Center as an anti-gay hate group. 1 Gacek released the following press release:

"The Fourth Circuit erred when it struck down the decision of the people of Virginia to define marriage as it has been understood for ages: as being between one man and one woman. Today, the Supreme Court put a hold on the Fourth Circuit ruling, allowing Virginia's law to continue to be enforced while the Fourth Circuit's opinion is appealed [to the Supreme Court].

We are glad that the Court saw the wisdom of slowing down the judicial process in this instance so that marriages will not be entered into that would later have to be nullified. Such irresponsible mayhem has been witnessed in Utah, and it resulted in legal chaos for state residents and state officials.

Despite court rulings in favor of same-sex marriage, we remain optimistic that other Circuits will rule in favor of the right of states to define marriage as between one man and one woman. The consequences of redefining marriage are immeasurable. All Americans should hope, but, more importantly, fervently pray that the United States Supreme Court upholds the rule of law and allows voter-backed marriage amendments to stand." 2

His reference to "irresponsible mayhem" relates to the 1,300 same-sex couples who decided to be married in Utah before the stay was put in place. These couples married without any assurance that they would not be forcibly divorced against their will by the state at some time in the future.

It is unclear to us why the FRC considered the 4th Circuit Court's ruling to be an error. There have been 36 rulings about same-sex marriage bans by state and federal courts, including this one, during the previous 15 months,. Some of these decisions were by conservative judges; others were by liberal judges. Some were by female judges; others were male., 35 of the rulings had declared a state bans on same-sex marriage to be unconstitutional. All were based on the courts' conclusion that the ban violated the due process and/or the equal protection clauses of the 14th Amendment of the U.S. Constitution. These were the same grounds as were used by the U.S. Supreme Court in 1967 when they declared interracial marriages to be legal across the entire U.S. in the famous case Loving v. Virginia. Almost all of the 35 decisions have been stayed to prevent same-sex couples from actually marrying at this time. Most observers expected that the U.S. Supreme Court will rule on same-sex marriages across the entire U.S. either in 2015-JUN, or 2016-JUN.

What Gacek appears to refer to as the "rule of law" is in most cases an amendment to a state Constitution. These have been passed many years ago by substantial majorities of voters in 28 states. The amendments, in most cases, banned both the solemnizing of marriage in-state and the recognition of marriage previously solemnized out-of-state. Many religious and social conservatives consider such amendments to be the highest law in the land.

However, the vast majority of constitutional experts disagree. They regard the federal constitution to rule in cases of conflict between the U.S. and a state Constitution. Most courts' rulings have said that Article 14 of the U.S. Constitution clearly states that the federal and state governments must treat all citizens equally. So if opposite-sex couples are allowed to marry, the federal Constitution implies that same-sex couples must have the same right.

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Reactions to the Supreme Court's stay:

Mark Herring (D), the governor of Virginia said on AUG-19 that same-sex couples in his state were:

"... tired of having to wait another day for their state to treat them fairly and equally.

But, referring to a similar case in Utah, he said that he:

"... reluctantly agreed that a stay was warranted in light of the way the Supreme Court handled [the] nearly identical case."

Defendant Michele McQuigg, the Prince William County Circuit Court, clerk filed a statement saying that if same-sex marriages were solemnized before the Supreme Courts final ruling, it:

"... would invite needless chaos and uncertainty rather than facilitate the orderly and dignified resolution of a constitutional question of enormous national importance." 2

Jon Davidson is the legal director at Lambda Legal -- one of the main national groups promoting marriage equality. He said:

"I  definitely think granting the stay means there’s a good chance we’re going to hear a case raising the issue. I don’t consider it a setback; I see it as we’re in the same boat and will be for a number of more months." 3

Emma Margolin, writing for MSNBC, wrote:

"When the Supreme Court justices return from summer recess in September, they will be greeted with at least three requests, known as petitions for writ of certiorari, to review marriage equality cases. Each suit -- one from Utah, one from Oklahoma, and one from Virginia -- has the potential to draw a broad ruling from the high court that clarifies once and for all whether same-sex marriage bans are constitutional. The justices declined to answer that question in last year’s Hollingsworth v. Perry decision, which cleared the way for same-sex marriages to resume in California, as well as in the United States v. Windsor decision, which invalidated a key portion of a [federal Defense of Marriage] law that prevented the federal government from recognizing same-sex marriages.

Though the legal momentum since has been stunning -- with nearly 40 wins for marriage equality to date -- the justices are not required to hear any of the lawsuits marching toward them. If one of these cert petitions does not get the four votes necessary to grant review, then the appeals court ruling would be the last and final word." 3

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star 2014-OCT-06: In a surprise move, the U.S. Supreme Court decided to take no action, with overwhelming consequences:

Emma Margolin's prediction, above, came true. The U.S. Supreme Court decided to not grant certiorari to any of the same-sex marriage lawsuits before it. This decision affected a total of four lawsuits from five states in the 4th, 7th, and 10th U.S. Circuit Courts of Appeal. The decisions of the three-judge panels in these four lawsuits will be "the last and final word."

In the case of Virginia, the ruling by the three-judge panel of the 4th Circuit Court of Appeal in the lawsuit McQuigg v. Bostic is now in force. The long struggle for marriage equality in this state has ended. Marriages by same-sex couples began on the afternoon of the same day.

The court offered no explanation for their decision. However, their past decisions to grant certiorari have often involved lawsuits in which multiple Courts of Appeal have issued conflicting rulings. The Supreme Court is then generally willing to step in to resolve the conflict among these lower courts. However, as long as the appeal courts continue to be unanimous in their decisions, the Supreme Court will often decide to not become involved themselves. 4,5

The refusal of the Supreme Court still came as a shock to many commentators. Many had been expecting to see the Supreme Court accept at least one of these appeals and make a final decision in mid-2015 or 2016 on same-sex marriage that would apply across the entire country:

  • Marriage equality has grown to become the main religious conflict of our time, surpassing even women's access to abortion within many faith groups.

  • There are on the order of 30 million people in the U.S. who are -- or will find out later in life that they are -- lesbian, gay, or bisexual. Many of these are -- or will be -- anxious to marry a person of the same sex that they love and to whom they want to commit themselves for the rest of their lives.

  • During September, Attorney Generals from 17 states filed a amicus curiae ("friend of the court") brief with the U.S. Supreme Court urging the court to accept one or more of the appeals before it and rule whether same-sex couple have a right to marry in the U.S. More details.

  • Also during September, five conservative Christian groups opposed to marriage equality filed briefs with the U.S. Supreme Court asking them to resolve the marriage equality debate nationwide as soon as possible. More details.

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This topic continues in the next essay

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References used:

The following information source was used to prepare and update the above essay. The hyperlink is not necessarily still active today.

  1. David Demirbilek, "Southern Poverty Law Center repeats 'hate group' claim about Family Research Council," Daily Caller, 2012-SEP-13, at: http://dailycaller.com/
  2. "Family Research Council Praises US Supreme Court for Issuing Stay on Virginia Marriage Ruling," Family Research Council, 2014-AUG-20, at: http://www.frc.org/
  3. Emma Margolin, "A silver lining in delaying gay marriage," MSNBC, 2014-AUG-08, at: http://www.msnbc.com/
  4. Richard Wolf, "Supreme Court paves way for gay marriage in Indiana," IndyStar, 2014-OCT-06, at: http://www.indystar.com/s
  5. "High court ruling may lead to gay marriage in 30 states," USA Today, 2014-OCT-06, at: http://www.usatoday.com/

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How you may have arrived here

Site navigation: Home > Homosexuality > Same-sex marriage > Menu > Virginia > here

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Copyright © 2014 by Ontario Consultants on Religious Tolerance
Originally written: 2014-JUL-29
Latest update: 2014-OCT-07
Author: B.A. Robinson

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