In a split 2-1 opinion, the 4th Circuit affirmed the District Court’s determination that the Old Dominion state’s ban on same-sex marriage was unconstitutional. In a pithy footnote on the penultimate page of the majority’s opinion, the court declined to stay its ruling.
Because we are able to resolve the merits of the Opponents’ claims, we need not consider their alternative request for a preliminary injunction. We assume that the district court’s decision to enjoin enforcement of the Virginia Marriage Laws encompassed a permanent injunction, which the Plaintiffs requested in connection with their motion for summary judgment.
There was no discussion of the Supreme Court’s ruling two weeks ago in the Utah case, or any other precedent. The Virginia Attorney General has declined to defend the law, so there will not be a cert petition forthcoming from the Commonwealth. Even if the Supreme Court grants certiorari on the Utah petition, same-sex marriages can commence in Virginia.
Update: Josh Block at the ACLU informed me that the Virginia AG stated that he would file a cert petition. As well, the clerk is a named defendant, subject to the injunction, so he would also be able to appeal. This is different from the clerks in Oregon and Pennsylvania, who were unable to sue.