Virginia is for Lovers: Chief Justice John Roberts holds the fate of marriage equality in Virginia in his hands

An update from Equality on Trial. Supreme Court to decide whether to stay same-sex marriages in Virginia:

The Supreme Court will decide this week whether to halt same-sex marriage in Virginia. Couples will be able to marry on Thursday unless the Court stays the mandate, or formal judgment, in the Fourth Circuit case, Bostic v. Schaefer.

The request for a stay has been filed with Chief Justice John Roberts in his capacity as Circuit Justice for the Fourth Circuit Court of Appeals. Chief Justice Roberts has called for responses by 5 PM Monday. Responses are expected from the Bostic plaintiffs, Virginia’s attorney general, and Lambda Legal and the ACLU on behalf of the Harris intervenors.

UPDATE: All three responses have now been filed. Chief Justice Roberts could rule on the request at any time, or he could refer the matter to the full Court to decide whether to grant the stay. Notably, all three responses ask the Court to treat the application for a stay as a petition for certiorari. Clerk McQuigg has noted that she intends to file a cert petition requesting that the Court review the Fourth Circuit decision on the merits, but she hasn’t filed one yet.

The U.S. Supreme Court previously granted requests for stay from the state of Utah in its same-sex marriage appeal. In Virginia, the state declined to defend its same-sex marriage ban in court, and it supports the 4th Circuit Court of Appeals decision. Virginia’s law is being defended by a Prince William County Clerk, who filed the request for stay. The difference between a state making the request and a request from a county clerk could determine the outcome of this request for stay.

If the Court were to deny the request for stay and allow same-sex marriages to proceed in Virginia beginning on Thursday, despite an appeal from the 4th Circuit of Appeals decision, the Court will be tipping its hand on the same-sex marriage appeals. I am inclined to believe that the stay will be granted, and the Court will take up the several same-sex marriage appeals headed its way in its term beginning in October.