Everyone’s waiting for them to tackle the bigger question.
The Supreme Court on Wednesday stopped Virginia officials from issuing marriage licenses to same-sex couples, putting on hold a lower court ruling that said the unions could start on Thursday.
The court stayed a decision by a panel of the U.S. Court of Appeals for the 4th Circuit, which on July 28 agreed with a district judge’s ruling that Virginia’s ban is unconstitutional. The same panel last week declined to delay its ruling.
But the Supreme Court stepped in after both defenders of the law and Virginia Attorney General Mark R. Herring (D) asked for a stay. Herring believes the law is unconstitutional and joined those challenging it, but said it would be disruptive to allow marriages to begin before the Supreme Court decided the ultimate question of whether state bans violate the U.S. Constitution.
Both challengers of the ban and supporters of the voter-approved measures restricting marriage to a man and a woman have asked the court to use Virginia as a test case to decide the issue. But the justices’ order gave no indication that would happen.
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Wednesday’s stay was not surprising. The justice already had taken similar action in the Utah case, after judges found that state’s ban unconstitutional and refused to issue a stay.
And the Supreme 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 justices’ ruling that the marriages should stop.
The action indicates that the high court wants more lower courts to weigh in instead of giving what might be construed as implied approval of an unbroken string of federal court decisions striking down state bans on same-sex marriages.
The Sixth Circuit is on the clock right now, with others to follow, including (eventually) the Fifth Circuit. SCOTUS should have no shortage of appellate opinions to consider by the end of the year or so.