A federal appeals court based in Virginia became the second federal appeals court in the nation to strike down a state’s gay marriage ban, increasing the likelihood that the Supreme Court will take up the issue next year.
But the 2-1 decision from the U.S. Court of Appeals for the 4th Circuit could reverberate outside the Old Dominion before that: The appeals court ruling would set precedent in West Virginia, North Carolina and South Carolina if it goes into effect, which could happen as early as August 18.
The delayed implementation is to allow for the two Virginia circuit clerks who were defending the state’s gay marriage ban to request a stay or to ask the entire Court of Appeals (rather than just three judges) to hear the case. Utah decided to skip the full court and go directly to the Supreme Court after the 10th Circuit struck down the state's gay marriage ban last month, but it’s unclear if same-sex marriage opponents will take the same approach in the Virginia case.
In the 4th Circuit, other gay marriage lawsuits in West Virginia, North Carolina and South Carolina were on hold pending the appeals court ruling, which would now set precedent in those cases. The 4th Circuit decision would also impact Maryland, but gay marriage is already legal there.
While there’s no order mandating that clerks in West Virginia, North Carolina and South Carolina issue marriage licenses immediately (or even if the appeals court ruling goes into effect in August), individual clerks may decide to do so based on the ruling. That’s what happened in Colorado following the 10th Circuit decision, and the legal fight over those licenses is playing out among officials in the state.
“The decision itself applied some general principles about the freedom to marry,” Jon Davidson, of the gay rights group Lambda Legal, said Monday in a conference call after the 4th Circuit decision. “Those principles would apply to the other states in the 4th Circuit, but the decision does not order the clerks in those states to allow same-sex couples to marry.”
But Ted Olson, a conservative former U.S. solicitor general who has helped lead legal battles against same-sex marriage bans, cautioned there was “a very significant likelihood” that opponents of gay marriage would ask either the 4th Circuit or the Supreme Court to stay the decision.
“Before people get too excited … history has told us with respect to the other states that are taking place, it’s at least a distinct possibility that the effect of this decision will be stayed along with other court decisions until the United States Supreme Court gets around to deciding these issues,” Olson said Monday.