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Same-sex couples and those defending Virginia same-sex marriage ban file case status updates

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Last week, Virginia Attorney General Mark Herring announced that he has changed his position on the legality of Virginia’s same-sex marriage ban; he’ll fight the ban in court filings, marking a huge departure from the previous attorney general’s position on same-sex marriage, as well as LGBT issues generally. The district court judge then issued an order requiring all the parties in Bostic v. Rainey, the case that the American Foundation for Equal Rights (AFER) attorneys Ted Olson and David Boies joined, to inform the court how the attorney general’s change will affect the proceedings. As EqualityOnTrial summarized:

The judge wants to know, essentially, whether to have oral arguments on the pending motions for summary judgment (a decision on the merits of the case without a full trial, just on the briefing) now that the attorney general thinks the law is unconstitutional; the judge also wants to know whether “any parties or other entities have grounds to present argument that the laws denying the right to marry to same-sex couples should be construed as constitutional[.]”

To briefly summarize everyone’s positions noted in their filings: only one party to the case (State Registrar of Vital Records Janet Rainey) explicitly suggests that it would be better to have oral arguments on the merits; there were no noted objections to the case proceeding in light of the attorney general’s change in position; and Prince William County Circuit Court Clerk McQuigg has asked the court to stay any decision favor of same-sex couples pending appeal of the case on the merits. Oral arguments are currently scheduled for this week, and it remains to be seen if they will still happen, given that most everyone suggests it’s acceptable to issue a ruling based on the briefs alone.

Here’s a more in-depth look at the filings:

The plaintiffs, same-sex couples in Virginia, write to the court that because the court now “has before it briefing from the parties and amici curiae sufficient to enable it promptly to issue rulings on Plaintiffs’ motion for a preliminary injunction [to temporarily block Virginia’s ban from being in effect while the case proceeds] and the parties’ cross-motions for summary judgment [filings on the merits, from all sides]”, and because “the Court also now has the benefit of the Attorney General’s arguments” in opposition to Virginia’s ban, the court could now simply rule on the motions without oral argument. They suggest 30 minutes for oral arguments if other parties want to have them, and they note that Ted Olson will argue the summary judgment motions and David Boies will argue the preliminary injunction motion.

More importantly, they argue that the “Attorney General’s change in position does not require that other non-parties be invited to present argument in defense of the laws” because “Defendant Schaefer [Norfolk County Court Clerk] and Intervenor McQuigg [Prince William County Circuit Court Clerk] are defending the Prohibition forcefully and vigorously.”

Prince William County Circuit Court Clerk McQuigg also notes that arguments are unnecessary given all the briefing that has been done in this case. She suggests, though, that were the court to schedule arguments, and fairly address all the questions before the judge, she “anticipates that the duration of that argument, depending on the number of questions from the bench, would be approximately 30 minutes,” echoing the plaintiffs.

Most of her brief discusses technical procedures: she asks for permission to adopt the previously-filed motion for summary judgment, submitted originally by the outgoing attorney general in defense of Virginia’s ban on behalf of Janet Rainey, the State Registrar of Vital Records, as her own motion. (Rainey is represented by the attorney general’s office, so she is now opposed to the marriage ban.) She asks for permission to issue her own filings in the case if she’s not allowed to adopt the earlier-filed motion as her own. And she asks for permission to file a 30-page brief outlining her response to the attorney general’s change in position by February 6. This would cause a delay in the case: the parties were all asked to file a 5-page brief responding to the change in position by today, Monday January 27.

She agrees that the parties currently defending the law are adequate to satisfy jurisdictional issues. And last, she asks for a stay of the court’s decision, if the court were to rule in favor of the same-sex couples.

State Registrar Janet Rainey’s filing suggests that “[t]his case certainly could be decided without a hearing,” however, “the better course would be for the Court to proceed to decide this case promptly while permitting oral argument next week, as scheduled.” Arguments are already scheduled for January 30, this week. In terms of jurisdictional issues, whether or not the parties are sufficient, Rainey’s brief notes that “[u]nder Virginia law, circuit court clerks are independent constitutional officers” and so they’re not under the control of the state attorney general. The two parties defending the ban, Clerk McQuigg and Clerk Schafer, both have standing to defend the ban.

Rainey’s filing also argues that it’s too late for anymore amicus briefs to be filed, with oral arguments so close.

Norfolk County Court Clerk George Schaefer “neither requests nor objects to a hearing on the summary judgment motions,” and if “the Court is prepared to issue a ruling on the briefs, Clerk Schaefer has no objection to a prompt decision.” He requests, in the event oral arguments are ordered, 15-20 minutes for argument and 5-10 for rebuttal. He argues the change in position by the attorney general does not affect his position.

The district court should make a decision soon on how to proceed from here. An order would likely be issued fairly quickly, since arguments are currently scheduled for Thursday, January 30.

Thanks to Kathleen Perrin for these filings

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

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  • 1. James  |  January 27, 2014 at 8:07 am

    How exactly are county clerks organized in Virginia with respect to issuance of marriage licenses? I ask because in California it was determined that county clerks issuing marriage licenses were not issuing them by their own authority but rather under the authority of the state, and thus they could not individually object to it or appeal in court.

    If that's similar to how Virginia does it, could the judge just issue an injunction barring the attorney general and governor from enforcing Virginia's same-sex marriage ban and ignore the county defendants completely? That would presumably prevent the county clerks from appealing (since they were not ruled against). And since the attorney general and governor wouldn't appeal, seems like that would bring marriage equality to Virginia immediately.

    Am I missing something?

  • 2. grod  |  January 27, 2014 at 9:30 am

    James, as stated on page 3 of Rainey submission [linked above by Scottie]:" Intervenor McQuigg, the Clerk of the Circuit Court of Prince William County. Under Virginia law, circuit court clerks are independent constitutional officers. See Va. Const. art. VII, § 4. They are not among the State entities who are represented by the Attorney General under Code § 2.2-507. See Va. Code Ann. § 2.2-507(A) (2011); 1974-1975 Op. Va. Att’y Gen. 68, 69 (construing predecessor statue). Accordingly, the clerks here are properly represented by their own counsel. "

  • 3. James  |  January 27, 2014 at 1:15 pm

    Ah, missed that my apologies. Thanks!

  • 4. davep  |  January 27, 2014 at 9:01 am

    I'm really hoping they don't issue a stay once they rule in our favor. There's just no legitimate justification for it and I'm really sick and tired of these insulting and harmful actions from our courts.

  • 5. GregG  |  January 27, 2014 at 9:55 am

    Unfortunately, with the SCOTUS stay of the Utah decision they have signaled to all lower courts that if they don't issue a stay, SCOTUS will.

  • 6. Stefan  |  January 27, 2014 at 10:39 am

    Not necessarily. If no statewide official request one but an outside group does they could very well deny a stay for standing reasons.

  • 7. Bruno71  |  January 27, 2014 at 11:33 am

    "Prince William County Circuit Court Clerk McQuigg has asked the court to stay any decision favor of same-sex couples pending appeal of the case on the merits." McQuigg is considered an intervenor in the case, so it may depend on whether or not that's enough to give her standing. My feeling is it will be, even if the Norfolk clerk doesn't request a stay.

  • 8. Stefan  |  January 27, 2014 at 11:55 am

    But will it be enough for the stay to be granted is the big question.

  • 9. Fluffyskunk  |  January 27, 2014 at 8:47 pm

    I think it's pretty clear at this point that gay means stay. 🙁

  • 10. Lynn E  |  January 27, 2014 at 1:17 pm

    If Utah had presented the 10th Circuit with the same arguments for a stay that they argued to SCOTUS, a stay might have been issued. Their arguments have "evolved" to suit their immediate needs, which may end up coming back to haunt them. I'm not sure why the Virginia case should have a stay if they are indicating an appeal from them is unlikely.

  • 11. grod  |  January 28, 2014 at 8:11 am

    Lynn, clarify "if they are indicating an appeal by them is unlikely" in the context of Prince William County Clerk having asked the court in writing to stay any decision that favor marriage of same sex couples pending appeal of the case. Mindful of the US Supremes issuing a stay in the Utah – Kitchen case, going forward with the 35 cases currently before the courts, I doubt if any other AG would not ask for a stay, or lower courts not granting it.

  • 12. Zack12  |  January 27, 2014 at 9:25 am

    This should be a quick trial.
    This ban is among the harshest in the nation and Bob Marshall,the man who helped create it with help from the Liberty Counsel has made it clear he views gay and lesbian couples as sinners so there is your proof this ban is based on animus,a no no under the 5th and 14th amendments.

  • 13. grod  |  January 27, 2014 at 10:31 am

    Zack, Liberty Counsel requested a late filing. Rainey: footnote 4 pg 5 recommends it be denied because the request came so very late and it did not come with an amicus brief. Too bad, their submission may very well have illustrated the level of enmity that was present – as you suggest

  • 14. davep  |  January 27, 2014 at 11:13 am

    Yes, but even without those submissions the record is already full of the same kind of evidence from those same people.

  • 15. grod  |  January 27, 2014 at 9:52 am

    dave: Rainey and the AG recommend a hearing. It comports with the seriousness of whatever the outcome. [And gives the public the opportunity to see that the status quo was well defended]. The US Supremes decision in Utah's Kitchen case was sighted in one of briefing for requesting/granting a stay – given the certainty of appeal. To say there is no legitimate justification for it IMO overstates the circumstances, particularly on the ground. In the Kitchen case, Shelby was not asked in writing for a stay – not before, not in a conference call he initiated a few hours after the decision came down. He was asked late that night and set the next business day to hear it. By that time he denied the stay marriage licenses were being issued, marriages had occurred.

  • 16. Pat  |  January 27, 2014 at 3:07 pm

    So… if they proceed by summary judgement, that means we could already get a ruling in the next few weeks, likely in February?
    And even if they go for a hearing, we could also possibly get a decision in February, on March at the latest?
    All in all, it is very possible that we may get marriage equality in Virginia (with or without a stay) in February or March? Is this what observers are expecting, or am I missing something?

  • 17. Equality On TrialOral arg&hellip  |  January 29, 2014 at 2:54 pm

    […] Herring announced that he’ll cease his defense of the ban, and the other parties to the case notified the court that their positions remain unchanged. Prince William County Circuit Court Clerk Michele McQuigg […]

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