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Virginia same-sex marriage case headed to Supreme Court

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In a new filing, Prince William County Circuit Court Clerk Michele McQuigg has told the Fourth Circuit Court of Appeals that she intends to ask the Supreme Court to review Bostic v. Rainey.

This move means that the clerk will bypass a request to have the full Fourth Circuit rehear the case, a process that could take months or longer.

The filing itself is a request to stay the mandate, or formal judgment by the Fourth Circuit, pending the outcome of the expected petition for certiorari in the Supreme Court. The filing suggests that the question of same-sex marriage is “substantial”, and points out that the Court accepted a marriage case for review just last year.

Clerk McQuigg has 90 days to file a petition.

This is the second case that’s headed to the Supreme Court. Utah officials have said they will ask the Justices to review the Tenth Circuit’s decision in Kitchen v. Herbert.

Thanks to Equality Case Files for these filings


  • 1. brandall  |  August 1, 2014 at 1:43 pm

    Good! Now there are two possible cases for cert.

    How do you all feel about Bostic being given cert instead of Kitchen. And dang, I have to run out for few hours. I look forward to catching up later today.

  • 2. Scottie Thomaston  |  August 1, 2014 at 1:49 pm

    I personally think Kitchen is more straightforward and there aren't any issues SCOTUS could use to issue a jurisdictional ruling. That's not to say that there's no standing in Bostic, but if SCOTUS were looking for a way out, it's easy to see how they could use that.

  • 3. DaveM_OH  |  August 5, 2014 at 6:45 am

    Scottie –
    Here's the problem with that though: If SCOTUS ducks the question using standing issues in Bostic, they didn't resolve the core holding of Kitchen. It's not possible to argue that the AG of Utah doesn't have standing to enforce the laws of the state, so SCOTUS can't effectively remand Kitchen for consideration consistent with the holding in Bostic.

    All that said, I am seeing a bit more probability that SCOTUS might deny cert until the 5CA (or 11, or possibly 6) rules against equality – just because every. single. ruling. is coming out in favor of equality, they may let it play out.

    Also also, read this:

  • 4. Bruno71  |  August 1, 2014 at 1:54 pm

    I don't care which case they grant cert on (assuming it's a clean case, which these both are). But it's great to have multiple pro-equality decisions before SCOTUS.

  • 5. Marekweber  |  August 1, 2014 at 1:59 pm

    Either case would be poetic, Bostic because it echoes Loving v. Virginia, and Kitchen because it's Utah.

    At this point, it seems likely that they'll consolidate the two cases rather than deny cert to either one.

  • 6. BillinNO  |  August 2, 2014 at 6:55 am

    I for one feel really good about the optics of it certainly. The first, wealthiest, and most populous colony, home of the battlefield where we won independence, Mother of Presidents, the Capital of the Confederacy; birthplace of Washington, Jefferson, Madison, Monroe, Taylor, Tyler, Woodrow Wilson- Stonewall Jackson and Robert E. Lee. Let Virginia set the precedent!

    Its entirely fitting- its poetic. In my life I've seen massive resistance in Prince Edward County, and Loving vs Virginia. We fought the marriage amendment in '06, and we turned Virginia blue for the first time in 44 years in 2008. And now, somehow, we've got two democratic senators and a democratic governor for seemingly the first time since Noah's flood. Hell yeah, let it be Bostic- let it all come down to Old Virginia!

  • 7. David  |  August 2, 2014 at 11:51 am

    And don't forget Mark Herring, the Democratic AG who not only declined to defend the unconstitutional VA law but filed a brief on the side of the plaintiffs. That is what leadership looks like.

  • 8. EricKoszyk  |  August 1, 2014 at 2:02 pm

    Uganda's extremist anti-gay law has been struck down by a court. It's been struck down due on technical grounds which means that parliament might revive it in the future. Still, good news for now.

  • 9. Christian0811  |  August 1, 2014 at 2:23 pm

    Unfortunately, even if the ruling is upheld by their high court, the ruling means nothing for the state of the sodomy law itself.

    At least, I wouldn't presume it would.

  • 10. Mike_Baltimore  |  August 1, 2014 at 2:42 pm

    So when the court says the law is unenforceable, that means the government of Uganda can still enforce it?

  • 11. F_Young  |  August 1, 2014 at 3:44 pm

    Ugandan penal law already prohibited sodomy before the Anti-Homosexuality Act was passed. It is a successor to a law imposed by the British colonists; that sodomy section is still in effect. So, gays can still be imprisoned, but only for sex between men.

    The Anti-Homosexuality Act 2014 was considerably broader than the sodomy section; it prohibited sex between women, not just between men, and various other offenses meant to criminalize the gay community and its allies.

    This is the text of the Anti-Homosexuality Act, 2014:

  • 12. Mike_Baltimore  |  August 2, 2014 at 3:41 pm

    The manner in which the comment by Christian is written can easily lead a person to believe that only one law is being discussed. Since two laws are being discussed, the comment should have indicated that the second law ("the sodomy law") is a different law. Does the commenter assume that everyone knows that there are two laws being discussed? It would appear that that is what the commenter assumes, since there is no mention that a different law (with lesser penalties) can still be enforced.

  • 13. F_Young  |  August 2, 2014 at 12:03 pm

    EricKoszyk: "Uganda's extremist anti-gay law has been struck down by a court."

    Ugandan TV Coverage of the Court Decision Striking Down Anti-Homosexuality Act

  • 14. Jen_in_MI  |  August 1, 2014 at 2:05 pm

    I marvel anew at the seemingly depthless pockets of the ADF. You would think that "smart money" would make better choices than paying for loser case after loser case. I think the donors have succumbed to "sunken cost fallacy" WRT ME.

  • 15. Eric  |  August 1, 2014 at 2:40 pm

    If it was smart money, it wouldn't be funding superstition.

  • 16. Sagesse  |  August 1, 2014 at 2:54 pm

    I think I read somewhere that the Greens, the owners of Hobby Lobby, are big supporters of ADF's funders.

    Or was that Beckett Fund. I'll have to hunt for the article (within the last six months),

  • 17. Sagesse  |  August 2, 2014 at 4:49 am

    My mistake. The Greens are behind the Becket Fund, which represented them in Hobby Lobby. ADF represented Conestoga Wood.

  • 18. Mike_Baltimore  |  August 1, 2014 at 2:55 pm

    Many of the cases in which the ADF are involved are NOT being paid for by the ADF, but by the states and various other bigots, and also with contributions from bigots outside the particular jurisdiction.

    For example, the ADF is representing the state of Arizona. The representation costs are not being born by ADF, but the state (thus the taxpayers) of Arizona. And if the plaintiffs win and get the court to require the defendants to pay court and legal costs, those costs also will not be born by ADF, but the state (thus the taxpayers) of Arizona.

  • 19. brandall  |  August 2, 2014 at 8:12 am

    ADF' s IRS Form 990 for FY ending 6/30/13 shows total revenue of $39M, Direct Legal Expenses of almost $10M, and Salaries/Benefits of $17M and Other Expenses of $12M.

    So, a little less than have of their tax deductible contributions goes to the staff. I know this is America, but it kills me to see their 501c showing they are a "human rights" organization.

  • 20. dingomanusa  |  August 2, 2014 at 8:43 am

    I also noticed they wired quite a few 18,000 cash grants for "law scholarships" to several countries. I wonder who those cash grants went to. Thanks for posting that 990.

  • 21. Steve  |  August 2, 2014 at 1:16 pm

    Just business as usual for right-wing/religious organizations.

  • 22. sfbob  |  August 1, 2014 at 2:18 pm

    All I can say at this point it "Bring it!"

  • 23. Leo  |  August 1, 2014 at 2:33 pm

    Page 6: "the panel’s decision conflicts with […] Baker v. Nelson, […] appeal dismissed for want of a substantial federal question […] Thus, […] the question presented is substantial."

  • 24. brandall  |  August 1, 2014 at 4:52 pm

    For some unknown reason, I have subconsciously lost all interest in cookies, cakes, cupcakes and bread over the last 3 days.

  • 25. Terence  |  August 2, 2014 at 12:56 am

    Australia: there's now a strong probability that a gay marriage bill will come before the Australian parliament's next session, and that the Liberals in the governing coalition will allow a conscience vote. If they do, there's a good chance it will pass: polls show that voter support is sky high, and the politicians know it.

  • 26. Zack12  |  August 2, 2014 at 11:58 am

    They all know it, including the bigoted PM Tony Abbott who has made clear that not even his lesbian sister will change his mind on marriage equality.

  • 27. Ryan K.  |  August 2, 2014 at 7:40 am

    Repeating a post I put in an earlier thread (trying to have it relate to that thread): "I must have missed the thread or intra-thread where the panel was announced for the 6th Circuit Court of Appeals oral argument this coming week. It sounds pretty uphill given the panel, and it would either require an en band or lightning striking to get a win out of the 6th at this point. I guess we may have our circuit split sooner than imagined (i.e. The 5th). When was this already discussed?"

  • 28. F_Young  |  August 2, 2014 at 10:00 am

    Ryan K: "…I must have missed the thread or intra-thread where the panel was announced for the 6th Circuit…"

    The Sixth Circuit panel was posted in a comment under the article:
    "Equality news round-up: Challenge to New Jersey law banning so-called LGBT ‘conversion therapy’ dismissed, and more"

    …in which Zack12 linked to this article:
    "Marriage Equality Faces A Rough Ride In Court Next Week"

    In short, the Sixth Circuit panel consists of Deborah Cook, Martha Craig Daughtrey and Jeffrey Sutton.

  • 29. Ryan K.  |  August 2, 2014 at 10:11 am

    Thank you very much. I must have missed that thread for some reason. It basically contains both sides of the argument I expected to see.

  • 30. Zack12  |  August 2, 2014 at 11:59 am

    It sucks but I think we will get our split. I don't see Sutton or Cook ruling in our favor.

  • 31. Equality On TrialOklahoma&hellip  |  August 2, 2014 at 1:27 pm

    […] join two others at the Supreme Court in the coming weeks: Bostic v. Rainey, a case from Virginia, is headed to the Court, along with Kitchen v. Herbert, from Utah. Petitions are expected to be filed in all […]

  • 32. Equality On TrialA primer&hellip  |  August 4, 2014 at 10:33 am

    […] we covered last week, cases from Utah, Oklahoma, and Virginia are headed to the Supreme Court: the Justices will be asked to accept the cases for review in this […]

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