Plaintiffs ask U.S. Supreme Court to hear Virginia same-sex marriage case

Lawyers for two couples fighting to overturn Virginia's ban on same-sex marriage asked the U.S. Supreme Court on Wednesday to decide the issue once and for all.

In a filing that continued a recent batch of filings in the case, lawyers representing a gay couple from Norfolk and a lesbian couple from Chesterfield County urged the high court to take up the matter as soon as possible.

How the court rules "will determine whether gay men and lesbians across the country are afforded the full panoply of rights and protections guaranteed by the Constitution or will instead continue to live as second-class citizens," the filing said.

"There are compelling reasons for the Court to resolve this issue now," the 38-page brief added. "Each day that these loving, committed couples are excluded from marriage causes them profound, immeasurable, and irreparable harm."

The filing came in the form of a response to a formal petition recently filed by Virginia Attorney General Mark Herring asking the Supreme Court to hear the Virginia case. Though Herring and the plaintiffs were both on the winning side in the lower court, neither want those decisions to be the final word.

That is, if the Supreme Court declines to hear the same-sex marriage, lower court rulings around the country allowing such marriages will stand. But that will leave gay and lesbian couples in a sort of limbo, without the certitude they want from a "definitive ruling" by the Supreme Court.

"Only a ruling by this Court invalidating marriage discrimination against gay men and lesbians on a nationwide basis can assure Plaintiffs and all other same-sex couples of the validity of their marriages throughout the United States," the filing said.

The plaintiffs — Tim Bostic and Tony London of Norfolk and Carol Schall and Mary Townley of Chesterfield — are represented by large law firms working with the American Foundation for Equal Rights (AFER), a California group pressing to overturn same-sex marriage bans.

Those firms are Gibson, Dunn & Crutcher of Washington, D.C.; Boies, Schiller & Flexner in New York; and Shuttleworth, Ruloff, Swain, Haddad & Morecock, of Virginia Beach.

Wednesday's filing is among a growing litany of documents the Supreme Court will consider it decides whether to take up the Virginia case — or others in Utah, Oklahoma and elsewhere. The court could also hear a combination of the cases or none at all.

The filing comes on the heels of an appeal Friday by Norfolk Circuit Court Clerk George Schaefer III, who contended that federal courts have misread a landmark Supreme Court ruling a year ago.

Schaefer said that 2013 decision — which said the federal government must recognize same-sex marriages from states that allow it — has been incorrectly interpreted by judges to rule state bans unconstitutional. In fact, Schaefer contends, the ruling simply means states can decide the issue.

Meantime, a petition for appeal is expected in the coming weeks from the Alliance Defending Freedom, an Arizona-based Christian rights organization.

In February, U.S. District Judge Arenda L. Wright Allen, based in Norfolk, tossed Virginia's ban on same-sex marriage, ruling it unconstitutional under provisions on equal protection and due process of law.

In late July, Allen's ruling was upheld 2-1 by a panel of the 4th U.S. Circuit Court of Appeals. But the U.S. Supreme Court recently stayed the enforcement of that decision.

The high court isn't expected to hear the same-sex marriage issue until sometime next spring at the earliest, a scenario that would put off a final ruling on the controversial issue until later in 2015. The court could uphold existing state bans on same-sex marriage, or it could outlaw the bans in dozens of states at once.

Dujardin can be reached by phone at 757-247-4749.

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