Rival Certiorari Petitions on Fourth Circuit Ruling Against Virginia Marriage Laws

Last Friday, George E. Schaefer III, the Clerk of the Circuit Court of the City of Norfolk, filed an excellent certiorari petition seeking review of the divided Fourth Circuit panel ruling against Virginia’s marriage laws. Among other things, Schaefer makes a compelling case that the Court should prefer his petition to the petition filed by Virginia attorney general Mark Herring on behalf of the state registrar of vital records.

Herring has already irresponsibly abandoned his duty to defend Virginia’s marriage laws, so the Court’s interest in having the case vigorously briefed by both sides would not be served by granting his petition. Conversely, Schaefer is well represented by Kyle Duncan, a talented appellate lawyer (who, before starting his solo practice, was general counsel of the Becket Fund and, before that, solicitor general of Louisiana).

Here’s the introduction to Schaefer’s petition (reporter citations omitted):

This petition arises from a spiraling national controversy only this Court can resolve. That controversy, however, does not concern the merits of same-sex marriage. It does not even concern whether we will have same-sex marriage in the United States. We already do: a minority of States have recently adopted it through the democratic process. Rather, the controversy concerns whether the issue will be decided by state citizens or by judges.

Since this Court’s Windsor decision last year, a wave of courts has decreed that the Fourteenth Amendment compels States to recognize same-sex marriage. Yet Windsor itself taught that state citizens are free to make up their own minds about this issue by exercising their “historic and essential authority to define the marital relation.” These decisions, then, have not applied Windsor; they have subverted it. They have not enforced the Fourteenth Amendment; they have “demean[ed] … the democratic process.” Schuette v. Coalition to Defend Affirmative Action (2014) (op. of Kennedy, J.). They have not expanded freedom; they have reduced it.

Contrary to these mistaken decisions, the Fourteenth Amendment does not override “state sovereign choices” about whether to adopt same-sex marriage. This petition is the right vehicle to settle that issue. The petitioner, George Schaefer, is a circuit court clerk responsible for issuing marriage licenses and has been at the center of this controversy in Virginia from the beginning. The case has no standing defects. Nor are there any prudential standing issues with Schaefer’s petition. Unlike the Virginia Attorney General—who changed position mid-litigation and attacked Virginia’s marriage laws—Schaefer consistently defended those laws in the district court and on appeal, and would continue to do so vigorously in this Court.

The Court should grant Schaefer’s petition and rule that the decision of Virginia’s citizens to retain the traditional definition of marriage was “without doubt a proper exercise of [their] sovereign authority within our federal system, all in the way that the Framers of the Constitution intended.” Windsor.