Federal judges refuse to stay decision against Virginia same-sex marriage ban

A federal appeals court panel refused Wednesday to delay its decision striking Virginia's ban on same-sex marriage, which means it will soon be up to the Supreme Court to decide whether gay marriages can begin in the commonwealth next week.

The same panel of the U.S. Court of Appeals for the Fourth Circuit that decided July 28 that Virginia's ban is unconstitutional rejected a request to stay its order until the high court decides whether to accept an appeal.

With that action, the commonwealth could start issuing marriage licenses on Wednesday.

But those defending Virginia's voter-approved ban said they will ask the Supreme Court to step in before then, and there is reason to believe they will be successful.

The Supreme Court justices, without noted dissent, have already stopped same-sex marriages in Utah after judges there found that state's ban unconstitutional and refused to issue a stay. And the court later put on hold a judge's order that the state must recognize the 1,000 or so unions that took place between the decision and the court's ruling that the marriages should stop. The order indicated that the justices want more lower courts to weigh in on the legal issue before giving what might seem to be even implied approval of the federal judge's decision that the bans cannot stand.

"Because the Fourth Circuit chose not to place a hold on its decision, as other courts - including the U.S. Supreme Court - have done in nearly identical cases, we intend to ask the high court to do so in this case before the Fourth Circuit's mandate goes into effect," said Byron Babione, senior counsel for the Alliance Defending Freedom.

The conservative legal organization represents Prince William County Clerk of Court Michele McQuigg, who is defending the law since the state's Democratic leadership has chosen not to.

The request will go to Chief Justice John Roberts Jr., who receives emergency requests from the Fourth Circuit, and then is likely to be referred to the full court. The circuit covers Virginia, Maryland, North Carolina, South Carolina and West Virginia.

Proponents of same-sex marriage said the Fourth Circuit panel was right not to find a reason to stay its decision. "There is no doubt that Virginia is ready for the freedom to marry," said James Parrish, executive director of Equality Virginia. "Marriage validates the commitment couples make to one another and, if the Supreme Court doesn't intervene, achieving marriage equality in Virginia will be a tremendous step forward."