This afternoon the Fourth Circuit Court of Appeals denied the request from Michele McQuigg, Circuit Court Clerk for Prince William County, to stay the decision affirming the legality of same-sex marriage in Virginia. Attorney General Herring is attempting to hijack the appeal while supporting a temporary ban on same-sex marriage. As of next week, not only is the Marshall-Newman amendment banning gay marriage in Virginia struck down, but Virginia clerks will have to issue marriage licenses to same-sex couples that request them.
Our esteemed Attorney General supports same-sex marriage, but also supports the granting of a stay
Attorney General Mark Herring
Virginia Attorney General Mark Herring has earned substantial justified ire in his decision to openly advocate against an aspect of the Virginia Constitution in derogation of his duties as Attorney General. Still, he has attempted to prove that he is the adult in the room by supporting McQuigg in her application for a stay of the Fourth Circuit and District Court decisions overturning the ban on gay marriage. Mind you, the other plaintiffs from both the Eastern District and Western District of Virginia cases all opposed the granting of the stay (yes there are two cases: a well planned and thought out case filed in the E.D.Va. and a flashy sensationalist case filed by the ACLU of Va. in the W.D.Va.). When given the opportunity to fight for same-sex marriage now, as opposed to months from now, Herring chooses months from now, and contradicts his own allies. More on this later . . .
The chances of Virginia Clerks issuing marriage licenses to same-sex couples next week are still low
Despite today’s ruling, McQuigg will undoubtedly move quickly in the Supreme Court for a stay. Emergency motions like this are made to the Justice that is assigned to the particular circuit court in which the case is pending. In this instance, Chief Justice Roberts is assigned to the Fourth Circuit Court of Appeals. He will have the first opportunity to rule on the stay. He will likely refer it to the whole court just like Justice Sotomayor did in the Utah case. In the Utah case a stay was issued a mere two days after a motion was filed by the State of Utah. The Justices are presumably taking some necessary time off, but will still address any motion filed quickly. There are some differences between the Utah and Virginia cases though. Most importantly, in Utah there was a short 17 day period in which licenses were issued after a stay expired and before a new one was enacted, and for which the legality of the marriages involved is still in question. We have no such problem in Virginia yet.
Herring claims credit for overturning Virginia’s ban on same-sex marriage, and appeals a case he already won
Herring, in his desperation to be the anti-Cuccinelli, not only has his office openly advocate against the Virginia Constitution, but also is attempting to hijack the appeal from the original plaintiffs and secure his place as the most activist liberal attorney general in the country.
Parties have two weeks from Fourth Circuit rulings to file a petition for rehearing or a petition for rehearing en banc ( to the whole court). The plaintiffs won at the Fourth Circuit and have nothing to appeal. The Commonwealth of Virginia won at the Fourth Circuit, and has nothing to appeal. Only the two Circuit Court Clerks have a right to petition for rehearing or appeal. McQuigg gave up her right to petition for rehearing when she requested the stay. The other clerk appears not to have acted yet.
Herring on the other hand, in some bizarre attempt to act as if this case was his idea all along filed a petition for writ of certiorari less than two weeks after the Fourth Circuit decision. The only way this behavior is procedurally logical is if Virginia is now claiming that the Marshall-Newman Amendment is constitutional and is now seeking to overturn the Fourth Circuit. Only an aggrieved party can normally file an appeal. Of course Herring makes no such claim that Virginia is aggrieved. The petition essentially begs the Supreme Court to affirm what has already occurred.
The driving force behind this behavior is Herring’s desire for acclamation
Herring wants to be seen as the driving force behind legalized same-sex marriage in Virginia. In order to do that he has purposefully jumped ahead of the plaintiffs in the case in filing his petition for writ of certiorari, an act for which he likely has no legitimate right.
In his accompanying press release he states:
“Attorney General Herring is the first state attorney general to successfully argue in court at the district and appellate levels that a state marriage ban is unconstitutional, and the first who supports marriage equality to petition the Supreme Court for review.” Source.
Herring is now thumbing his nose at his supposed allies by refusing to oppose a stay of the district and circuit court rulings. He is doing so because he wants to be the one who brings the case to the Supreme Court.
The people who “successfully argued” this case in the district court and the circuit court are the attorneys at Shuttleworth, Ruloff, Swain, Haddad & Moorecock, P.C. in Virginia Beach who represent Bostic and London. The credit lies with them, and not some Attorney General who was not smart enough to figure out his legal position on this issue until after he took office.
