Knocking on the Supreme Court’s Door for Marriage Equality

Yesterday, August 5, the governor and attorney general of Utah filed their petition for certiorari with the US Supreme Court, seeking review of the 10th Circuit’s decision that Utah’s same-sex marriage ban violates the 14th Amendment.   Counsel for the defendant clerk in the Oklahoma marriage case has also announced that they will be filing a cert petition.

From the 4th Circuit, which ruled recently that Virginia’s marriage ban is unconstitutional, comes word that at least two cert petitions will be filed.  Intervenor-Defendant Michele McQuigg, the Clerk of Court for Prince William County, filed a motion seeking to stay the 4th Circuit’s mandate pending filing of a cert petition.  She has 90 days from the date of the opinion to do so, which gives her until mid-October.

Virginia Attorney General Mark Herring, agreeing with McQuigg that the 4th Circuit’s mandate should be stayed pending a final Supreme Court determination, filed his own motion papers on August 5, advising the court that his office, represented by Virginia Solicitor General Stuart A. Raphael, will be filing its own cert petition on August 8.

Herring is in somewhat the same position as was U.S. Attorney General Eric Holder in the Windsor case.  Like Holder, Herring was represented in the court of appeals by the Solicitor General’s office, in both cases arguing for marriage equality.  In both cases, the court of appeals ruled in favor of the S.G.’s argument, and in both cases the A.G. authorized cert petitions.  Like Holder, Herring is seeking a definitive ruling on whether the challenged law is unconstitutional, and meanwhile is enforcing the law pending such a determination.   Herring noted that McQuigg had announced she would be filing a cert petition, but he expressed concern that there not be unreasonable delay in getting this case to the Court, so he is filing his own petition right away, rather than taking the 90 day window allowed under the jurisdictional statutes.

If the Supreme Court grants Herring’s petition, it is likely that Solicitor General Raphael will participate in the oral argument presenting the state’s official position that its marriage ban is unconstitutional, as Solicitor General Donald Verrilli appeared for the government in U.S. v. Windsor making a similar argument.

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