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A fourth same-sex marriage appeal filed

Arguing that lower federal courts have “subverted” the Supreme Court’s decision last year on same-sex marriage, a Virginia court clerk on Friday filed his own petition — the second filing seeking a ruling on the constitutionality of that state’s ban on such marriages and the fourth on the basic constitutional issue.  The filing may complicate the Court’s chances of promptly considering that issue.

The new document was filed by lawyers for George E. Schaefer III, who is the circuit court clerk for the city of Norfolk.  He has been taking part in the Virginia case since it began, and he is now defending the ban, after state officials opted not to do so.  Already pending at the Court are another petition from Virginia, one from Utah, and one from Oklahoma.  Another is expected soon from Virginia, to be filed by a different clerk.

On Wednesday, the Court blocked the issuance of licenses for same-sex marriages in Virginia pending the filing of a petition by the other clerk who is defending the ban, Michele B. McQuigg of Prince William County.  Her petition is being prepared now by her lawyers, who may file it within the next week or so.

In the other two Virginia filings, one by the state attorney general and now by the Norfolk clerk, each claimed that it was the proper vehicle for the Court to review the validity of the Virginia ban.  But the two are on slightly different procedural timetables within the Court, and that will be true as well for the McQuigg petition when it is filed.

If the Court wishes to consider all three of those together, that may delay action, because of the different timing.  But that only affects whether the Court acts earlier rather than somewhat later, because the issue will remain a pressing one with all sides urging the Court to move ahead without delay to settle the underlying issue.

The cases from Utah and Oklahoma are developing rapidly, and could be the first to be ready for the Justices to consider.  If, however, the Court opts to examine all pending same-sex marriage petitions at once, that may also complicate the timing issue.

The new Virginia petition by clerk Schaefer put its strongest emphasis on state sovereignty, arguing that the Supreme Court’s decision fourteen months ago in United States v. Windsor embraced the power of the states to define for themselves who may marry.  (The Windsor decision struck down a key part of the federal Defense of Marriage Act, citing — among other reasons — its interference with same-sex marriages that were legal under state law.)

The filing contended that the core issue that is now reaching the Court is who decides the question.  “The controversy concerns whether the issue will be decided by state citizens or by judges.”

The Windsor decision “taught that state citizens are free to make up their own minds about this issue by exercising their ‘historic and essential authority to define the marital relation,'” the filing said, quoting from that ruling.

Since then, lower federal courts that have struck down state same-sex marriage bans “have not applied Windsor; they have subverted it.  They have not enforced the Fourteenth Amendment; they have ‘demean[ed]…the democratic process.’  They have not expanded  freedom; they have reduced it.”  (The quoted material about the democratic process is from the Court’s decision in April, upholding the power of the citizens of Michigan in a ballot measure election to prohibit the use of race in public college admissions policies.)

A series of lower federal court decisions against state bans are “mistaken,” the petition asserted, because “the Fourteenth Amendment does not override state sovereign choices about whether to adopt same-sex marriage.”



Recommended Citation: Lyle Denniston, A fourth same-sex marriage appeal filed, SCOTUSblog (Aug. 22, 2014, 5:20 PM),