A protester holds an American flag and rainbow flag.
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A silver lining in delaying gay marriage

Updated

There were three things 38-year-old Melissa Powell was planning to do this week had the Supreme Court not blocked Virginia from recognizing same-sex marriages.

First on the list was adding her name to her wife, Suzanne Weaver’s, state-paid health insurance. As an employee of the Virginia Commonwealth University, Weaver receives top-rate coverage that’s widely accepted among doctors and specialists. Powell, on the other hand, gets less expensive insurance through the non-profit organization where she works, coverage that left her drowning in out-of-pocket medical bills when she was diagnosed with breast cancer last year.

Next up, planning a Virginia wedding. The two were married three years ago in Washington, D.C. But as Powell puts it, to be able to marry in the state they call home “has significant value.”

“What we are asking for is more than a piece of paper. We’re asking for the right and opportunity to live life equally and to live free.”
Melissa Powell
Last but not least, obtaining legal rights to their two children. Each woman is a biological mother of one of their daughters. But because Virginia does not allow second-parent adoption, neither is viewed as a legal parent to the child she did not give birth to – a barrier that throws into uncertainty their ability to keep both girls in the event that something changes in their relationship.

“What we are asking for is more than a piece of paper,” said Powell. “We’re asking for the right and opportunity to live life equally and to live free. Especially in my case, having access to my wife’s benefits can mean the difference between getting the care I need and not getting the care I need. Ultimately, it affects our children.”

Powell and Weaver weren’t the only ones let down Wednesday, when hours before same-sex couples were slated to begin marrying, the nation’s highest court stepped in and delayed the effects of a ruling that struck down Virginia’s ban. Retired U.S. Coast Guard Commander Jim Scheye had to immediately call his parents in Florida before they boarded a plane to come to his wedding, which was due to take place first thing Thursday morning. His future father-in-law had already driven in from Delaware.

“It was important for us to do this on Day 1,” said Scheye, who has been with his partner, Justin Smith, for 15 years.

There was no explanation for the stay. But both the clerk who’s defending the ban, and the attorney general who’s arguing against it, requested that the Supreme Court intervene in order to avoid legal chaos while the case is appealed.

The move was hardly a surprise – twice this year, the Supreme Court had already halted marriage equality from going forward, both times in Utah. In January, the justices issued a stay pending appeal on a ruling that allowed over 1,000 same-sex couples to marry in the Beehive State. Then in July, the high court again issued a stay on a ruling requiring Utah officials to recognize those marriages.

“But between the lines, some say, there may be a silver lining.”
Like the Utah stays, Wednesday’s nine-line order blocking same-sex marriages in Virginia offered no indication as to how the justices would rule on the merits of a marriage equality case, if and when they choose to hear one at all. But between the lines, some say, there may be a silver lining.

“I definitely think granting the stay means there’s a good chance we’re going to hear a case raising the issue,” said Jon Davidson, legal director at Lambda Legal, one of the groups representing the thousands of same-sex couples hoping to marry in Virginia. “I don’t consider it a setback; I see it as we’re in the same boat and will be for a number of more months.”

When the Supreme Court justices return from summer recess in September, they will be greeted with at least three requests, known as petitions for writ of certiorari, to review marriage equality cases. Each suit – one from Utah, one from Oklahoma, and one from Virginia – has the potential to draw a broad ruling from the high court that clarifies once and for all whether same-sex marriage bans are constitutional. The justices declined to answer that question in last year’s Hollingsworth v. Perry decision, which cleared the way for same-sex marriages to resume in California, as well as in the United States v. Windsor decision, which invalidated a key portion of a law that prevented the federal government from recognizing same-sex marriages.

Though the legal momentum since has been stunning – with nearly 40 wins for marriage equality to date – the justices are not required to hear any of the lawsuits marching toward them. If one of these cert petitions does not get the four votes necessary to grant review, then the appeals court ruling would be the last and final word.

Which bring us back to Virginia, where the 4th Circuit Court of Appeals concluded last month that the state’s same-sex marriage ban was unconstitutional. If the Supreme Court decides not to hear the case, the 4th Circuit ruling would be the end of it; gay and lesbian couples could start marrying in the state, and couples like Powell and Weaver who married elsewhere would be entitled to the full trove of spousal benefits. But if the Supreme Court had no intention of hearing the case, and in turn, allowing same-sex marriages to go forward in Virginia (as well as in the other states that make up the circuit), why issue the stay? Why bother blocking gay and lesbian couples from marrying now, only to let them marry anyway in a matter of months?

It’s these questions that swirl through the minds of marriage equality advocates, and in disappointing times, buoy their spirits.

“If the Supreme Court had no intention of hearing the case, why issue the stay? Why bother blocking gay and lesbian couples from marrying now, only to let them marry anyway in a matter of months?”
“This makes it even more clear that the Supreme Court has to take up this issue, and is going to take up this issue,” said James Esseks, director of the ACLU Lesbian Gay Bisexual and Transgender Project, and one of the attorneys representing the Virginia plaintiffs. “It doesn’t work for the court to say, ‘No these rulings don’t apply yet,’ and for the court to not take up the issue.”

Esseks added that the fact that the court has now interfered in the Virginia suit makes it “potentially more likely” that the justices would grant review to that particular case.

“It means the court is at least aware of the case,” agreed Davidson. “They’ve read some briefing about it, so it’ll be more familiar to them.”

The other thing that could make the Virginia suit more attractive to the court is the history behind it. Virtually every group responsible for the major gay rights victories of the last twenty years is working on this case – including the ACLU, Lambda Legal, Jenner & Block’s Paul Smith, and the American Foundation for Equal Rights (AFER,) whose employees, Ted Olson and David Boies, are among the most experienced attorneys in constitutional law. In fact, they’ve already argued a marriage equality case before the Supreme Court – Hollingsworth v. Perry – which returned marriage rights to same-sex couples living in California, but failed to do so for same-sex couples living everywhere else.

Additionally, Virginia is home to a landmark 1967 case that established the foundation for today’s marriage equality movement. Loving v. Virginia struck down interracial marriage bans in a Supreme Court decision nearly 50 years ago, and it’s now cited in many of the opinions in favor same-sex marriage. While the Supreme Court may not care that one of the marriage equality cases before them shares a place of origin with Loving, the connection may be enough to stir the justices’ more sentimental side.

Not everyone reads the tea leaves the same way, however. As compelling as the signs may be that the Supreme Court will soon hear a marriage equality case – maybe even this particular marriage equality case – no one knows for sure.

“It’s all speculation,” said Carl Tobias, a University of Richmond law professor. “I don’t see how you can tell anything from that incredibly terse stay grant.”

Nevertheless, it’s hard to not be optimistic. On the day same-sex marriages were supposed to begin in Virginia, Florida became the 16th state to see its ban fall in federal court since last year’s Windsor ruling.

“I think they will rule toward marriage equality,” said Powell, saddened though she was a day after the Supreme Court issued the stay. “It’s an inevitable thing that will happen. I just wish it could’ve been yesterday.”

Correction: An earlier version of this article stated that Justice Sonia Sotomayor granted a stay request to Utah officials in January. She actually referred the matter to the full court, which issued a stay without noting the justices’ positions.

Marriage Equality and SCOTUS

A silver lining in delaying gay marriage

Updated