An Arizona Christian-rights organization said in a motion Friday that it will go directly to the U.S. Supreme Court to challenge lower court decisions on Virginia's ban on same-sex marriage — asking for a "stay" of the court rulings in the meantime.
A three-judge panel of the 4th U.S. Circuit Court of Appeals this week upheld the decision of a Norfolk federal judge, ruling that Virginia's ban on same-sex marriage violates federal constitutional protections on equal protection and due process of law.
Those legally challenging the ruling had the opportunity to seek a hearing before the full federal appeals court. That court, based in Richmond, has 15 sitting judges from five states.
But in a filing Friday, the Alliance Defending Freedom, based in Scottsdale, Ariz., indicated it will bypass that route and go directly to the nation's highest court in an attempt to settle the issue once and for all.
The Alliance is representing Prince William County Circuit Court Clerk Michele B. McQuigg, who asked to intervene as a defendant in January. That came just days before Virginia Attorney General Mark Herring said he would not defend the state's gay marriage ban — including a 2006 constitutional amendment.
"Clerk McQuigg intends to file a petition … with the Supreme Court within the ninety days permitted," the Alliance's top lawyer, Byron S. Babione, wrote in the filing, saying the date the petition is due is Oct. 26.
The U.S. Supreme Court is widely expected to take up the same-sex marriage issue in the next couple of years, or as soon as early 2015 — and could well take up Virginia's case to make its ruling.
The high court could uphold existing state bans on same-sex marriage, as marriage traditionalists want. Or it could outlaw the bans in dozens of states at once, as is sought by progressives.
If the high court decides not to take up the matter, the 4th Circuit decision will stand and gay and lesbian couples will be able to get married in Virginia and the circuit's other states.
The Alliance also asked for a "stay" of the 4th Circuit's decision — that its implementation be put on hold until the Supreme Court weighs in.
Many believe the Court of Appeals was already planning to order such a stay when it issues its formal judgment next week. The Supreme Court had given prior "guidance" to appeals courts around the country that encouraged them to stay decisions on same-sex marriage.
Even Herring — among the biggest proponents of overturning the state's gay marriage ban — supports a stay, saying an orderly transition is essential and that "only the U.S. Supreme Court can decide this issue."
But the Alliance was taking no chances and formally asked for such a delay in a 13-page motion Friday.
Not granting a stay — allowing gay and lesbian couples to immediately get married — will create "uncertainty and confusion," Babione wrote.
"A stay will ensure the orderly resolution of the important constitutional question presented in this case while avoiding uncertainty for the public and irreparable injury to the Commonwealth," he added.
In Utah, he wrote, a federal district court struck down that state's same-sex marriage ban, with the federal appeals court there declining to issue a stay. But the U.S. Supreme Court then ordered a stay "and Utah's man-woman marriage laws went back into effect."
"Thus, the State of Utah now declines to recognize the licenses that were issued to same-sex couples during that interim period," Babione wrote.
Dujardin can be reached by phone at 757-247-4749.Copyright © 2015, CT Now