Same-sex couples could begin marrying as early as next week in Virginia after a federal appeals court refused Wednesday to delay its ruling that struck down the state's gay marriage ban.
The state would also need to start recognizing gay marriages from out of state next Wednesday, though the U.S. Supreme Court could effectively put same-sex marriages on hold again if opponents of same-sex marriage are able to win an emergency delay.
A county clerk in northern Virginia had asked the 4th U.S. Circuit Court of Appeals in Richmond to stay its decision striking down the ban, issued in late July, while it is appealed to the high court. The appeals court's order did not explain why it denied that request.
The 4th Circuit decision "shows that there's no longer a justification to keep same-sex couples from marrying," said Nancy Leong, a law professor at the University of Denver. "Given how many different judges in so many different parts of the country ... have reached the same result, it seems highly likely that the plaintiffs will ultimately prevail on the merits, and I think that, in turn, explains why the 4th Circuit was not willing to grant a stay."
While clerks in other states within the 4th Circuit — West Virginia and the Carolinas — wouldn't technically have to begin issuing licenses as well, federal courts in the state would likely make them if they don't, Leong said.
Attorneys general in the Carolinas did not indicate whether they'd direct clerks to begin issuing licenses along with Virginia. Following the initial ruling last month, North Carolina Attorney General Roy Cooper announced that his office will stop defending his state's ban. A spokesman for South Carolina's attorney general, Alan Wilson, said he sees no need to stop defending that state's ban. Officials in West Virginia did not immediately comment. Maryland, another state in the circuit, already allows same-sex marriages.
Ken Connelly, legal counsel for Alliance Defending Freedom, which is representing Prince William County Clerk of Court Michele B. McQuigg in the case, said the group will seek an emergency stay from the nation's highest court "as soon as possible." That request will go to Chief Justice John Roberts, who is responsible for the 4th Circuit.
Connelly said he expects the stay to be granted, "given that there isn't any substantive difference" between the Virginia case and a federal case in Utah, in which the Supreme Court has twice granted delays in the state's fight to keep its same-sex marriage ban.
But Adam Umhoefer, executive director of the American Foundation for Equal Rights, which argued against Virginia's gay marriage ban, said "Virginia's loving, committed gay and lesbian couples and their children should not be asked to wait one more day for their fundamental right to marry."
Virginia voters approved a constitutional amendment in 2006 that banned gay marriage and prohibited the recognition of such marriages performed in other states. The appeals court ruling overturning that ban was the third such ruling by a federal appeals court and the first in the South.
While Virginia Attorney General Mark Herring noted the possibility that the Supreme Court could issue its own delay, he welcomed the 4th Circuit's move.
"No one anticipated we would be this close this quickly to the day when all Virginians have the right to marry the person they love," Herring said in a statement. "That will be a historic day for our commonwealth and a joyous day for thousands of loving couples."
Herring — who has said he will not defend the state's ban and believes the courts ruled correctly in striking it down — asked the Supreme Court last week to review a lower court's decision striking down the state's ban.
Herring said he believes the case will prove compelling to the high court because of the "stringent, discriminatory nature of Virginia's marriage ban" and other factors.
A panel of the 6th U.S. Circuit Court of Appeals in Cincinnati last week considered arguments regarding six cases from Michigan, Ohio, Kentucky and Tennessee. Some observers have said the 6th Circuit may be the first to uphold statewide gay marriage bans after more than 20 consecutive rulings in the past eight months striking them down.