A county clerk in Virginia signaled on Friday that she will be asking the Supreme Court in the next three months to consider the constitutionality of that state’s ban on same-sex marriage. This would be the second such case making its way to the Court by this fall; the state of Utah said earlier that it will pursue a case there to defend its own state ban.
In Virginia, Michele B. McQuigg, who is the county clerk of Prince William County, a jurisdiction just south of Washington, D.C., asked the U.S. Court of Appeals for the Fourth Circuit to delay its July 28 decision striking down the Virginia ban on same-sex marriages. She asked for a ninety-day delay to allow her to file a petition for review in the Supreme Court, which she said her lawyers would file by October 26.
Unlike most other states involved in court battles over same-sex marriage, Virginia allows its county clerks — the officers who issue marriage licenses — to be in court to defend the state ban. In other states where a defense has been mounted behind such a prohibition, state officials have done so.
The Utah and Virginia cases may not be the last of the same-sex marriage cases that could reach the Court during its coming Term, because other cases are proceeding on expedited schedules in other federal courts of appeals. The Court will have complete discretion whether to take on any of the cases, and on which one or more it might choose for reviewing the constitutional questions.
The Virginia case raises both of the issues that have arisen over same-sex marriages in the past year: state power to forbid gays and lesbians to marry anew, and state power to refuse to recognize such marriages that have been performed legally in other states.
McQuigg is one of two county clerks in Virginia who have come to the defense of the state ban. They took over the defense when state officials decided that they would no longer support the constitutional amendment and state laws that outlaw same-sex marriage altogether.
So far, in a series of federal and state court rulings in the past thirteen months, not one court has upheld such a prohibition. Two judges have dissented in courts of appeals decisions, but all other judges who have taken part have voted to nullify the bans at issue.
It appears that the Utah and Virginia petitions to the Supreme Court would come up for initial consideration, on granting or denying them, in time for a final ruling during the next Term if review is accepted.
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