UPDATED Tuesday, August 12, 11:53 a.m.   The Virginia case has now been docketed as 14-153.


Arguing that Virginia has gone further than most states to deny same-sex couples a chance to marry and the benefits of marriage, the state’s top legal officials urged the Supreme Court on Friday to take their case as “an excellent vehicle to resolve the controversy.”  Those officials support marriage for gays and lesbians, but are continuing to enforce their state’s ban while the issue goes through the courts.

This new petition is the third this week to reach the Court after thirteen months of lower court rulings, all of which so far have struck down state bans on same-sex marriages or bans on recognition of existing same-sex marriages.  The Court is expected to receive more appeals on the issue in coming days and weeks, likely giving the Justices a chance to select one or more cases soon after they return in September from their summer recess.

Each time a new appeal is filed in the Court on this issue, lawyers are likely to press for review of their particular case, since there are likely to be several choices.  The Justices have the option of selecting one or more cases — but also the option of accepting none, leaving the issue to play out further in lower courts.

In pushing their case for review, Virginia legal officials called their ban “one of the most stringent in the country.”  They said that it not only bars same-sex marriages and recognition of same-sex marriage performed in other states, but also forbids such couples from adopting children, nullifies any contract that is created by same-sex couples in another state, and generally blocks any legal rights that such couples might seek under existing state law if those rights were “plainly repugnant” to the marriage ban.

Ticking off what Virginia withholds from such couples, the petition said: “They cannot adopt children together, cannot own property as tenants in the entirety, cannot inherit spousal property by intestate succession, cannot enjoy the confidence of the marital privilege, cannot make medical decisions for their partner absent an advance directive, and cannot receive compensation under the wrongful death laws when a spouse is killed by the wrongful act of another.”

Noting other same-sex marriage cases in which procedural flaws prevented rulings on the validity of the bans, at least temporarily, the Virginia petition said that this case has none of those obstacles.

It is not a legal defect in this case, the petition said, that the state attorney general and other statewide officials have refused to defend the ban in court.   “The Virginia attorney general,” it said, “has made clear that, while he has concluded that Virginia’s marriage ban is unconstitutional, [state officials] will continue to enforce it until a definitive judicial ruling can be obtained.”

There is a live legal controversy in the Virginia case, the petition added, because two county clerks have been defending the state ban in court, and state law gives them the right to do so.

One of those clerks, Michele B. McQuigg, of Prince William County in northern Virginia, has said that she will shortly file her own petition in the Supreme Court, to provide a defense of the ban in place of state officials.

The Virginia case has special symbolic significance, because that is the state that produced the case of Loving v. Virginia, in which the Supreme Court in 1967 struck down a state law barring marriage by couples of different races.   The Virginia petition mentioned that decision in its first line on its first page.



Posted in Same-Sex Marriage Post-Windsor, Cases in the Pipeline, Featured, Same-Sex Marriage

Recommended Citation: Lyle Denniston, Virginia joins in urging same-sex marriage review (UPDATED), SCOTUSblog (Aug. 8, 2014, 1:30 PM), http://www.scotusblog.com/2014/08/virginia-joins-in-urging-same-sex-marriage-review/