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Briefing schedule set at Fourth Circuit in Virginia same-sex marriage case

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Fourth Circuit map
Fourth Circuit map

Yesterday, the Fourth Circuit Court of Appeals set the briefing schedule in Bostic v. Schaefer (Bostic v. Rainey in district court) and briefing will be finished by mid-May. SCOTUSBlog has a report on the briefing schedule, and the filing is here.

Here’s the schedule:

Appendix due: 04/07/2014

Opening brief [from those defending Virginia’s ban] due: 04/07/2014

Response brief [from the same-sex couples challenging the ban] due: 05/09/2014

Reply brief permitted within 14 days of service of response brief.

As EqualityOnTrial noted yesterday, both Clerk Schaefer and State Registrar Janet Rainey filed appeals in the case; those appeals were consolidated and so they’ll have the same briefing schedule.

Also filed yesterday, a notice of appeal from Prince William County Circuit Court Clerk Michele McQuigg, who was permitted to intervene in the district court. That appeal will likely be consolidated with the current ones. There’s a question of Article III standing in her appeal, because it’s hard to say if she’d have independent standing as a party who was granted permission to intervene in district court.

The briefing in this case will be going on while arguments are taking place in the Tenth Circuit appeals from Utah and Oklahoma. It seems possible decisions could come down around the same time. No argument date has been set in the Virginia appeal.

Thanks to Kathleen Perrin for this filing

For more information on Bostic v. Rainey (formerly Bostic v. McDonnell)from The Civil Rights Litigation Clearinghouse, click here.


  • 1. palerobber  |  February 26, 2014 at 10:24 am

    off topic, plaintiffs in Utah appeal have filed brief (via SLTrib):

  • 2. Zack12  |  February 26, 2014 at 11:05 am

    Hearing reports a ruling could be made today in the Texas case..we'll have to wait and see.

  • 3. Ragavendran  |  February 26, 2014 at 11:08 am

    This just in… odds of a favorable ruling have increased significantly as this judge has rejected a request to file a brief about the harmful effects of same-sex parenting and said his decision will not take into account any family/parenting-related issues/arguments.

    "U.S. District Judge Orlando Garcia indicated he will base his decision on 'law and United States Supreme Court precedent.'"


    "A ruling is expected on the case as early as this week."

  • 4. jpmassar  |  February 26, 2014 at 11:31 am

    Texas Federal District Court declares Texas ban on same-sex marriage unconstitutional

    The issue before this Court is whether Texas' current definition of marriage is
    permissible under the United States Constitution. After careful consideration, and applying the
    law as it must, this Court holds that Texas' prohibition on same-sex marriage conflicts with the
    United States Constitution's guarantees of equal protection and due process. Texas' current
    marriage laws deny homosexual couples the right to marry, and in doing so, demean their dignity for no legitimate reason. Accordingly, the Court finds these laws are unconstitutional and hereby grants a preliminary injunction enjoining Defendants from enforcing Texas' ban on same-sex marriage.

  • 5. Seth From Maryland  |  February 26, 2014 at 11:33 am

    OMG,BIG BREAKING NEWS:BREAKING: Federal District Judge Orlando Garcia rules that Texas' restrictions on same-sex marriage are unconstitutional. Judge Garcia issues injunction to prevent enforcement.

  • 6. Mike in Baltimore  |  February 26, 2014 at 11:35 am

    "Because their evidence is flawed and reliable, we are pleased that the court considered it irrelevant and that it will not be considered," Texas Values President and attorney Jonathan Saenz said.

    Typical of bigots – they spout completely and totally contradictory mumbo-jumbo, and don't realize that they do so.

    If the methodology is flawed (think Regnerus), it almost certainly will not be reliable (the appropriate finding might be found by accident). If it is reliable (think almost all other studies that say children raised by same sex parents are equal to children raised in opposite sex parent households), it is almost certainly not based on a flawed methodology.

    Similar to the lobbyist who says he will be introducing legislation forcing NFL teams to have separate showers for gay and straight players. He claims he's not a bigot, and the legislation is not based on any religious belief.

    Since when did a lobbyist have the power to introduce legislation? In ANY legislature in the US (state or Federal), the ONLY people who can introduce legislation are members of the legislature (except for a few states that allow the Governor to introduce legislation, such as Maryland).

  • 7. jpmassar  |  February 26, 2014 at 11:35 am

    Texas Federal District Court declares Texas ban on same-sex marriage unconstitutional

    Defendants argue the right to marry does not include the right to same-sex marriage. That is, Defendants claim this is a "definitional" issue, in that Plaintiffs are seeking recognition of a "new right to same-sex marriage" as opposed to the existing "right to marry." This Court finds this argument fails, as the Supreme Court did not adopt this line of reasoning in the analogous case of Loving v. Virginia

  • 8. Chuck from PA  |  February 26, 2014 at 11:40 am

    Texas became the next domino to fall. See details in story below.

  • 9. StraightDave  |  February 26, 2014 at 11:48 am

    I hope the Mich judge is watching this. Judge Carcia in TX said he wasn't going to consider family/parenting issues in a marriage case. So far, it seemed like the MI case was getting too caught up in parenting skills, which is a red herring.

  • 10. StraightDave  |  February 26, 2014 at 11:50 am

    Ya hear that crraaacckkkkk!!!!!?

    It's the camel's back breaking.

  • 11. Ragavendran  |  February 26, 2014 at 11:51 am

    The Michigan case is somewhat different – it started out as an adoption case and then broadened into a marriage case. And Michigan's adoption laws are tied to marriage, unlike in Texas.

  • 12. StraightDave  |  February 26, 2014 at 11:58 am

    Yes, but MI allows gay people to adopt, just not unmarried couples. Wouldn't you think a married gay couple would be more stable than an unmarried gay couple? MI apparently doesn't… or so they try to pretend. And these plaintiffs already have a couple of adopted kids. That's why the ban (for them) is so irrational.

  • 13. Ragavendran  |  February 26, 2014 at 12:02 pm

    Exactly! I hope the judge sees this soon enough!

  • 14. Kevin  |  February 26, 2014 at 12:03 pm

    I don't know if this has been reported here or not, but Regnerus will be allowed to testify in the Michigan case:

  • 15. Kevin  |  February 26, 2014 at 12:03 pm

    Meaning that the judge denied Plaintiffs' Daubert motion.

  • 16. palerobber  |  February 26, 2014 at 12:06 pm

    what effect, if any, does today's decision (De Loen v. Perry) have on the resolution of the other federal cases pending in TX? (McNosky v. Perry, Zahrn v. Perry)

  • 17. Kevin  |  February 26, 2014 at 12:10 pm

    But stayed the order.

  • 18. Straight Ally #3008  |  February 26, 2014 at 12:18 pm

    Eviscerate his testimony. As David Boies said, "The witness stand, under oath, is a lonely place to lie."

  • 19. Eric  |  February 26, 2014 at 12:56 pm

    Seriously, what a nonsensical way to spin the rejection of THEIR brief.

  • 20. David  |  February 26, 2014 at 1:22 pm

    "Scholars testifying in defense of Michigan’s constitutional ban on same-sex marriage aim to sow doubt about the wisdom of change. They brandish a few sharply disputed recent studies — the fruits of a concerted and expensive effort by conservatives to sponsor research by sympathetic scholars — to suggest that children of same-sex couples do not fare as well as those raised by married heterosexuals.

    That view will be challenged in court by longtime scholars in the field, backed by major professional organizations, who call those studies fatally flawed. These scholars will describe a near consensus that, other factors like income and stability being equal, children of same-sex couples do just as well as those of heterosexual couples."

    I don't think this will go well for them. I'm glad that there will be no doubt that they got every opportunity to make their case.

  • 21. Kevin  |  February 26, 2014 at 1:57 pm

    I know I can't wait.

  • 22. JustMe  |  February 27, 2014 at 3:28 am

    None. One federal judge is not bound by the decision of another federal judge.

  • 23. Equality On TrialExpedite&hellip  |  August 7, 2014 at 2:01 am

    […] expedite the briefing schedule and hold oral arguments during the May 13-15 argument session. The current briefing schedule has briefing in the appeal beginning on April 7 and ending around May […]

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