A federal appeals court is refusing to stay it’s rejection of Virginia’s constitutional amendment defining marriage as one man and one woman, meaning same-sex marriage will take place and be recognized in the commonwealth next week unless the Supreme Court intervenes.
The three-judge panel of the Fourth U.S. Circuit Court of Appeals rejected a request from Prince William County Clerk of Court Michele McQuigg for the judges to hold off enforcing its decision until the legal fight ends,most likely at the Supreme Court. Without action from the Supreme Court, same-sex marriages will be legal and recognized in Virginia starting August 20.
Traditional marriage defenders say Wednesday’s decision by the three judges is clear evidence they see themselves advancing a political cause.
“It’s a clear case of judicial activism. This is a no-brainer that you stay the decision. This has never been heard before in an appellate court like this and never heard before the United State Supreme Court, so the consequences are chaotic,” said Liberty Counsel Chairman Mathew Staver, who has defended traditional marriage in several states.
“If in fact they don’t stay the decision and people go get marriage licenses and then the case is overturned, then all those licenses are invalid. They’re not worth the paper they’re written on. So it’s a no-brainer that they would stay this. The only reason they wouldn’t is because they’re ideologues.”
Staver goes even further, saying one of the key pillars of our American system is eroding as this legal debate over marriage persists.
“I think what we’re seeing is not marriage on trial. We’re seeing the judiciary on trial. The only power they have is in the confidence of the people. If the people lose confidence in the courts, then the courts lose their power,” said Staver. “They certainly lose power or gain power only when the people respect their decisions. When they act like this, how can you respect a decision by these activist judges,” said Staver.
The good news for traditional marriage defenders is that the Supreme Court will most likely issue a stay until the justices can consider the many different state cases themselves. That’s the prediction of McQuigg’s attorney.
“Approximately seven months ago, the Supreme Court unanimously stayed a nearly identical federal court decision in a case that is materially indistinguishable from this one,” said Alliance Defending Freedom Legal Counsel Ken Connelly.
“By unanimously staying that case, we believe the Supreme Court essentially signaled to all lower federal courts that they must take similar steps to preserve the enforcement of these laws until the Supreme Court itself definitively resolves the issue,” he said.
Connelly says even Virginia Attorney Mark Herring, a fierce advocate for same-sex marriage, supports a stay until the Supreme Court rules on the issue.
Upon taking office in January, Herring immediately announced Virginia would no longer defend the traditional marriage amendment its constitution and would instead be actively pushing for it to be struck down. Connelly says it’s hard to know what impact Herring’s actions have had in this case since many courts around the nation have ruled the same way. However, Staver believes Herring has played a role and considers his actions deplorable.
“I think it’s a big impact. The attorney general of Virginia ought to do his job. His job is to enforce this constitutional amendment. If he has a moral or some other objection to it, then he should step aside and let someone else do an aggressive defense,” said Staver, who says any other lawyer would get in serious trouble for doing what Herring has done to the people of Virginia.
“In any other area, if an attorney actually turned on the client and argued the opposite of what the client wanted, that attorney would be subject to sanctions. That attorney would be subject to professional responsibility ethics challenges and discipline,” he said.
Since the Supreme Court struck down part of the Defense of Marriage Act (DOMA) in 2013, courts across the nation have used the decision as the premise to strike down traditional marriage laws and amendments.
Connelly says those courts are badly misreading the Supreme Court’s ruling, noting the justices found DOMA “unusual” because it was the first time the federal government waded into the issue of marriage. He says that same argument cannot be made in the Virginia case.
“There is absolutely nothing in Virginia’s marriage law regarding man-woman marriage or any other state’s laws regarding man-woman marriage that are unusual. They have been in place, in all cases, before the states even came into existence. The marriage laws come up from the English common law and marriage itself predates the state, not just the United States but states in general around the world,” said Connelly.
“Virginia has always provided for man-woman marriage and only man-woman marriage, so it’s not taking anything away. There’s nothing unusual about Virginia’s laws,” he said.
While Staver agrees that the legal argument strongly favors traditional marriage, he is not confident in the Supreme Court seeing it that way when the case finally gets there.
“I have no confidence in the Supreme Court on this particular critical issue. Frankly, if the Supreme Court were to take up gravity and determine that the laws of gravity were no longer good for us, that they were good for the founders but we’ve evolved past that, what kind of an opinion would that be? I think that’s the same thing with marriage,” said Staver.
Staver also has words of warning for right-leaning politicians and other conservative activists who keep silent on the issue or even consider embracing same-sex marriage as the polls lean in that direction.
“Those who remain silent will ultimately remain accountable, just as much as Democrats who advocate to the contrary. This is not an issue on which you can remain silent, any more than you can remain silent in Nazi Germany. That was a moral issue. There was a moral imperative there of the dignity of the human being. You can’t remain silent there and expect no consequences. Nor can you remain silent or advocate to the contrary with regards to the undermining marriage as the union of a man and a woman,” said Staver.
