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Expedited briefing schedule is requested in Virginia marriage equality case

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Fourth Circuit map
Fourth Circuit map
Both sides in Bostic v. Schaefer, one of the challenges to Virginia’s same-sex marriage ban, have consented to the filing of a request to the Fourth Circuit Court of Appeals to 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 13.

The new request allows for word limits, and has the schedule beginning on March 28 and ending on April 30:

Appendix due:

Opening briefs due: (Appellants Schaefer and McQuigg) (not to exceed 14,000 words each)

Response briefs due: (Bostic Appellees and Appellant Rainey) (not to exceed 14,000 words each)

Reply briefs due: (Appellants Schaefer and McQuigg) (not to exceed 7,000 words each)

And, although the attorney general, who is representing State Registrar Janet Rainey, believes the ban is unconstitutional, along with the plaintiffs, the state requests permission to file its own briefs, citing the differences between the plaintiffs and state defendants:

The Attorney General, who has a sworn duty to support both the U.S. Constitution and the Constitution of Virginia, has a unique interest in articulating his analysis why Article I, § 15-A, of Virginia’s Constitution, approved by the electorate in 2006, violates the Fourteenth Amendment. The Bostic Appellees, by contrast, do not speak on behalf of a sovereign; “they have taken no oath of office.” Hollingsworth v. Perry, 133 S. Ct. 2652, 2667 (2013).

They also address two other differences: the Bostic plaintiffs would oppose a stay of the decision, while Attorney General Mark Herring would continue to enforce the ban; and Rainey will have to address whether her appeal can move forward, since her position is that the ban is unconstitutional.

Defendants Schaefer and McQuigg are also asking to file separate briefs, since, although they both are arguing that the ban is constitutional, their reasoning differs in some respects.

In related news from Virginia, all parties in the Bostic litigation have filed responses to Lambda Legal and the ACLU’s request to have their plaintiffs (in Harris v. Rainey) intervene in the Bostic case, and all of them oppose the request. EqualityOnTrial will have those filings when they become available.

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. Ragavendran  |  March 3, 2014 at 12:17 pm

    Why are the Bostic plaintiffs opposing the intervention? Is it because it would delay the appeal?

  • 2. Tony C  |  March 4, 2014 at 5:36 am

    That, and too many cooks spoil the soup.

  • 3. bendreyfus  |  March 3, 2014 at 2:46 pm

    Looks like the 4th Circuit takes a summer recess, so if this request isn't granted, the case won't be argued until September (unless they add a special session).

  • 4. Pat  |  March 4, 2014 at 6:26 am

    And the cross-examination of Regnerus has just started! Let the fun begin!

  • 5. Marriage Equality Round-U&hellip  |  March 4, 2014 at 6:42 am

    […] USA, Virginia: Both sides in the marriage equality lawsuit have requested an expedited briefing schedule. full story […]

  • 6. Pat  |  March 4, 2014 at 6:59 am

    From @SteveFriess:

    Atty asking about Penn State scholar Paul Amato. "He strikes me as a moderate." Was an NSFF consultant. Atty about to put a statement from NSFF consultant Amato into the record. Amato has distanced himself from Regnerus. @familyunequal's blog post with Amato statement about Regnerus now taking centerstage. Amato's statement attacks Regnerus for amicus briefs that uses the study for anti-gay politics or claims its evidence about gay parenting.

    Amato's bit read by atty: "Many conservative observers have cited the Regnerus study as if it provided evidence that being raised by gay .or lesbian parents is harmful to children. This claim is disingenuous, because the study found no such thing. A noteworthy example came from Regnerus himself, who signed an amicus brief to the Supreme Court citing his study as evidence against same-sex marriage. ..This is curious because on page 766 in his 2012 article, Regnerus stated that his study was not intended to either affirm or undermine the legal right to same-sex marriage." — Amato

    Atty now reading statement from Regnerus' boss, UT-Austin sociology dept chair, refuting his work as "fundamentally flawed."


  • 7. Ragavendran  |  March 4, 2014 at 11:54 am

    Meanwhile, the 6th Circuit DENIED the motion to expedite appeal, but nevertheless, has set a somewhat swift briefing schedule. Appellant brief is due by April 10, appellee response brief is due by May 13. An optional appellant reply brief is due 17 days from the date the appellee files their response.

    Here is the Plaintiffs' reply to the State's opposing response:

    Here is the order DENYING motion to expedite briefing schedule:

    Here is the letter detailing the (normal) briefing schedule:

    (I posted this comment in the Ohio thread from ages ago, so I'm reposting in this new thread for visibility.)

  • 8. Rob  |  March 6, 2014 at 10:44 am

    I am a bit confused about the reference to VA AG Mark Herring continuing to enforce the ban while the court cases proceed. If the District Court ruling sometime after the May hearings upholds the lower court's invalidation of the marriage ban, would Herring still enforce it until it reaches SCOTUS? I hope that's not the case.

  • 9. Nyx  |  March 6, 2014 at 10:57 am

    I think as long as the ban is a live case in the courts it will be enforced. Remember, enforcing a law is quite different from defending it in court.

  • 10. Andrew  |  March 6, 2014 at 11:21 am

    There is no law right now in the US banning gay marriage. The Supreme Court clarified in DOMA last fall what the Constitution says. Courts don't make laws or change laws, they only state what the law has been before, during and after their ruling. If they overturn a previous ruling, it means that they think the previous Court made a mistake or that somehow something else has changed ( perhaps the society) which requires the court, by law, to apply the same law differently (ie: the facts have changed, but its the same law). (Cruel and unusual is a term whose meaning legally changes as society changes) As of last summer, if a state continues to enforce its bans, they are enforcing an invalid law. Every judge in the U.S., since DOMA, has come to that same conclusion. Its wrong for an Attorney General to defend an invalid law. State bans on gay marriage are just words on paper if they violate the US Constitution. The current state bans; therefore, are not what the state law actually is. That is why they refuse to defend the laws. Some courts have placed stays on their rulings if they aren't positive the higher court will agree with their conclusion of how to apply the Supreme Court ruling on DOMA to the facts in their state. Other judges have felt more confident that the all state laws changed last summer and have not placed stays on their rulings pending appeal.

  • 11. Rob  |  March 6, 2014 at 11:23 am

    Once the Fourth Circuit Court of Appeals rules and strikes down the VA law as unconstitutional, who would have standing to appeal to SCOTUS, beside Herring (I am assuming no one else has standing from the Perry case)? Since he doesn't defend the ban in court, would he then be free to no longer enforce the ban?

  • 12. Schteve  |  March 8, 2014 at 7:48 pm

    The other named defendants that the court is forcing to do something (issue licenses) unquestionably have the right to appeal.

    Also if a party does not have standing to appeal to the Supreme Court, it does not have standing to appeal to the Fourth Circuit.

  • 13. Equality On TrialTwo appe&hellip  |  August 7, 2014 at 12:34 am

    […] the Harris plaintiffs was opposed by all parties to the Bostic case. Both sides in the Bostic case agreed that the appeal should be […]

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