RICHMOND -- Attorney General Mark R. Herring filed a petition Friday asking the U.S. Supreme Court to hear Virginia's marriage equality case in the September session and settle the constitutional issues for the Commonwealth and the rest of the country.
The 4th Circuit Court of Appeals has ruled that Virginia's same-sex marriage ban violates the U.S. Constitution, but the Prince William County clerk has sought to delay the ruling which would allow marriage licenses to be issued for same-sex couples in the Commonwealth within 21 days. The filing states the delay would ensure the "orderly resolution" of an important constitutional question.
Virginia's gay marriage ban was approved by voters in 2006.
"Speed is warranted, for it is unjust for Virginia's same-sex couples to have to wait even a little while longer for the promise of the Fourteenth Amendment to be fulfilled. As this Court observed, across the Commonwealth, more than 2,500 same-sex couples are raising more than 4,000 children. They are our fellow Virginians. And the Attorney General is committed to ensuring that the government stops treating them as second-class citizens," Herring said.
A Norfolk couple -- Timothy Bostic and Tony London -- filed a lawsuit after being denied a marriage license in July 2013. In the Prince William County case, Carol Schall and Mary Townley of Chesterfield got married in California in 2008. They have a teenage daughter and want Virginia to recognize their marriage.
"The question presented is vital to a large population of same-sex couples, to their children, and to their fellow Americans who believe that discriminating against gay people is both unfair and unconstitutional. They may fairly call this the defining civil rights issue of our time,” according to the brief.
Virginia is one of several states challenging a ban against gay marriage.
"We are nearly here," Herring added.
Attorney General Herrings' brief explains:
1. The issue presented is exceptionally important, involving questions about fundamental rights that have not yet been resolved. This case is an opportunity to answer questions left unanswered by last year's cases involving Proposition 8 and the Windsor case involving the federal Defense of Marriage Act (DOMA.) The Windsor case struck down the federal marriage ban, but the Supreme Court left the question of state marriage bans unanswered in the Proposition 8 decision.
2. The case presents important federal questions on which federal and state courts are divided, including whether heightened scrutiny applies to laws that discriminate on the basis on sexual orientation. Virginia argues that heightened scrutiny should apply because courts should be suspicious of laws that discriminate against gay people.
3. Virginia's same-sex-marriage ban is a particularly good candidate for review. It is one of the most stringent in the country. For example, only married couples may adopt children together, thus preventing same-sex couples who wish to marry from legally becoming parents to the children they are raising. The plaintiffs' relationships also present a number of constitutional questions the court can consider, like whether a state can prevent marriage between same-sex partners, how a marriage between same-sex partners impacts children they are raising, or whether the Commonwealth can refuse to recognize a marriage performed legally in another state. Virginia's case is procedurally sound and does not suffer from defects--like lack of standing--that prevented the Court from reaching the merits last year in the Proposition 8 case.
Family Foundation statement on attorney general's petiton of Supreme Court:
While we are disappointed that Attorney General Herring continues to act in opposition to the Constitution of Virginia and his sworn oath, I think everyone is aware that one of the marriage cases currently being argued, perhaps Virginia’s, will end up at the Supreme Court," said Victoria Cobb, President of The Family Foundation of Virginia. "In his dissent, Judge Paul Niemeyer argued that the 4th U.S Circuit Court of Appeals got it wrong, saying ‘the majority has failed to conduct the necessary constitutional analysis. The fundamental right to marriage does not include a right to same-sex marriage.’ Hopefully, the U.S. Supreme Court will make a decision based on the law and not emotion, and correct the 4th Circuit’s error. We are grateful to Clerks Michelle McQuigg and George Schaefer for their steadfast defense of the laws of Virginia and their willingness to stand for the citizens of the Commonwealth in this case.