On Wednesday, the 4th Circuit denied a request to stay its recent ruling invalidating Virginia’s gay marriage ban, clearing the way for marriages to begin soon. The decision comes as something of a surprise: Although the two justices who struck down the ban castigated it as unconstitutional “segregation,” many equally emphatic courts have put their rulings on hold, essentially sitting on their hands while the issue works its way back to the Supreme Court. For 4th Circuit judges Henry Franklin Floyd and Roger Gregory, however, the harms caused by Virginia’s gay marriage ban are apparently so obnoxious to equal protection principles that the law must be nullified immediately.
If no further action is taken, gay couples in Virginia will be able to get married starting Aug. 20. There is, however, one remaining roadblock to marriage equality within the state. Advocates of the ban may well appeal the 4th Circuit’s recent order to the Supreme Court, begging the justices to halt same-sex marriages until the court settles the issue once and for all. Back in January, the court agreed to halt gay marriages in Utah while the issue was appealed; there’s a very good chance the justices will be take similar action here.
Even if, by a stroke of good fortune, the Supreme Court allows the 4th Circuit’s order to stand, gay marriage advocates have another reason to be worried. The 6th Circuit seems poised to rule against marriage equality in the coming months, and a conservative state judge in Tennessee recently ended the post-Windsor winning streak. The good news out of Virginia, then, may be the last ray of hope gay marriage advocates get for a while.
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