RICHMOND, Va. (AP) — Same-sex couples could begin marrying as early as next week in Virginia - and potentially North Carolina - 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.
The 4th U.S. Circuit Court of Appeals in Richmond ruled last month that Virginia's same-sex marriage ban is unconstitutional, a decision that could overturn Amendment One in North Carolina, which is a part of the court's jurisdiction.
Immediately following the ruling, North Carolina Attorney General Roy Cooper announced that the state would drop its opposition to lawsuits challenging the constitutionality of the statewide ban, effectively paving the way for same-marriage to become legal in the state.
“This is big,” said Aaron Sarver, spokesperson with the Asheville-based Campaign for Southern Equality. “The way we are reading this ruling now, we could see (same-sex marriage) licenses actually being issued to North Carolina couples that same day (Wednesday), and if not we expect one or several of the state court cases to progress very rapidly, likely within a few weeks.”
There are currently four cases pending challenging Amendment One, three of which have been stayed.
The remaining case that has not been stayed, General Synod of the United Church of Christ vs. Cooper, was filed in April in the Western District of North Carolina on behalf of the United Church of Christ. Several clergy from various faith traditions and same-sex couples are part of the suit, and many of those are from Asheville.
The case challenges the constitutionality of N.C. marriage laws — including Amendment One — on the grounds that the state effectively makes it illegal for clergy to perform wedding ceremonies for same-sex couples within their congregations.
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.
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.
Staff writer Casey Blake and Associated Press writers Alan Suderman in Richmond and Brady McCombs in Salt Lake City contributed to this report.