Plaintiffs Oppose Stay of Gay Marriage Ruling in Va.

Two gay couples challenging Virginia’s same-sex marriage ban asked a federal appeals court Monday to allow same-sex marriages in Virginia before the U.S. Supreme Court takes up the case.

“The right to marry is fundamental, and thus Virginia’s marriage prohibition irreparably harms plaintiffs-appellees — and all gay men and lesbians in the Commonwealth — each day that it remains in force,” attorneys for the case’s plaintiffs challenging the law wrote in a Monday court filing.

Attorneys who wrote the filing argued that allowing same-sex marriages would not result in any irreparable injury to the state or the public interest.

“In the unlikely event of reversal by the Supreme Court, any purported uncertainty about the validity of same-sex marriages performed before that decision could be addressed on remand. In any event, that risk of uncertainty falls on those same-sex couples who choose to marry before the Supreme Court has ruled, rather than on Clerk McQuigg or the Commonwealth,’’ the filing says.

Michele B. McQuigg, clerk of Prince William County’s Circuit Court in Northern Virginia, sought to delay last week’s 4th U.S. Circuit Court of Appeals ruling while it is appealed. A panel in Richmond ruled 2-1 last Monday that Virginia’s gay marriage ban approved by voters in 2006 is unconstitutional.

Attorneys for McQuigg wrote in their filing that the delay would “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.”

McQuigg volunteered to defend the state’s same-sex marriage ban in January after a federal district judge first ruled the law unconstitutional.

The American Civil Liberties Union of Virginia and Lambda Legal opposed the stay in a filing Friday, saying it would prevent Virginia’s approximately 14,000 same-sex couples from marrying or having their out-of-state marriages recognized.

Without a stay, McQuigg and other county clerks throughout Virginia could issue marriage licenses to same-sex couples 21 days after the ruling as opposed to the 90 days mandated by a stay. It is typical for the appeals court to grant a stay while a case is appealed to the Supreme Court, The Associated Press reports.

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