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As Virginia same-sex unions take place, Family Foundation vows fight

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Posted at 10:26 PM, Oct 06, 2014
and last updated 2014-10-07 15:01:38-04

[ooyala code=”RwYm93cDrKCVb_z3tamRGXLYIo_iCQR5″ player_id=”6c21d43b06ee4460a29e40d9542c86ae”]RICHMOND,  Va. — Just hours after the Supreme Court declined to debate same sex marriage, same-sex couples around the state, including Richmond, began to get married.

The U.S. Supreme Court cleared the way for legal same-sex marriages in five more states. The court refused to hear cases from the states — Indiana, Oklahoma, Utah, Virginia and Wisconsin — seeking to keep their same-sex marriage bans in place.

Experts say its refusal to hear the cases from those five states also means that six more states — Colorado, North Carolina, South Carolina, Kansas, West Virginia, and Wyoming — could soon have to lift their bans on same-sex marriage, because they are covered by the same circuit appeals courts that initially struck down the prohibitions.

Once that happens, the number of states permitting same-sex marriage would jump from 19 to 30.

“I can’t believe it is here,” a Richmond woman screamed.

“I am going to adopt my son,” one woman said, after getting married at the New York Deli in Carytown.

As people flocked to the public wedding — shown live on local television — traditional marriage supporters vowed to fight on, believing that just because the Court declined to debate the issue now, it still might sometime later.

marriage on tv

“This is not done – we are sitting here waiting,” Victoria Cobb of the Family Foundation told CBS 6.

“We will continue to advocate for traditional marriage and we believe strongly that every child deserves a mom and a dad,” Cobb said.

Many constitutional law experts say it will take a circuit appeals court upholding a gay marriage ban for the court to intervene.  Such a ruling would present a conflict among appeals courts, something the Supreme Court sees as its duty to resolve.

But among the questions hovering over the Court’s unexplained demurral in the five cases, is whether the justices would actually allow thousands of couples across eleven more states to marry, only to later rule, once and for all, that there is no constitutional right to marriage for same-sex couples.

“That would make the Supreme Court look stupid,” said Prof. Carl Tobias from the University of Richmond Law School.

Both sides passionate

Same-sex marriage is already legal in the District of Columbia and 19 U.S states: California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington.

A Supreme Court ruling on the constitutionality of same-sex marriage would essentially end a patchwork of state laws — some that allow it, some that prohibit it, and a few that allow protections short of marriage, such as civil unions and domestic partnerships.

Marriage equality supporters cheered the high court’s Monday order.

“Today’s decision by the Supreme Court leaves in force five favorable marriage rulings reached in three federal appellate courts, ensuring the freedom to marry for millions more Americans around the country,” said Evan Wolfson, president of Freedom to Marry.

“But we are one country, with one Constitution, and the court’s delay in affirming the freedom to marry nationwide prolongs the patchwork of state-to-state discrimination and the harms and indignity that the denial of marriage still inflicts on too many couples in too many places.”

The Supreme Court hurried to schedule the appeals from the five states for its closed-door conference, even before all the legal briefs had been filed. But the justices offered no explanation of why they are not ready to resolve the issue.

Some conservative activists say the high court should stay out of same-sex marriage issues.

“When the court on such an issue — where there are very strong opinions on both sides, and a huge issue of social change in our country — steps in and makes it into a constitutional issue, it makes the justices look significantly more political in the eyes of the American people,” said Carrie Severino, chief counsel of the Judicial Crisis Network.

“It would cast doubt on the legitimacy of the court … by imposing one type of solution for the entire nation, instead of leaving it in the hands of the states to decide how they want to address this issue.”

Many supporters of “traditional” marriage privately say preserving an inflexible one-man/one-woman definition of wedlock nationwide would not be realistic moving forward, and that a divided bloc of states upholding the status quo may be the best possible scenario. But all that hinges on what the Supreme Court does.

Virginia Attorney General Mark Herring, the first state attorney general to argue successfully at the district and appeals level for a marriage ban to be struck down, said “a new day has dawned, and the rights guaranteed by our Constitution are shining through.”

Same-sex precedent

A federal appeals court in August took just nine days after intensive oral arguments to issue its sweeping conclusion that voter-approved same-sex marriage bans in Indiana and Wisconsin were unacceptably discriminatory. And state leaders then took just five days to formally ask the Supreme Court to intervene.

Even Justice Ruth Bader Ginsburg recently hinted that a “Why wait?” attitude may predominate.

“I think the court will not do what they did in the old days when they continually ducked the issue of miscegenation,” she told The Associated Press in July, referring to interracial marriage, a ban on which was not struck down by the high court until 1967. “If a case is properly before the court, they will take it.”

It takes just four of the nine justices to put such petitions on the docket — but five, of course, to ultimately prevail on the merits.

State and federal judges in the past year have ruled 39 times in favor of the expanded marriage right, while two have upheld existing laws. All this follows what the Supreme Court in 2013 said peripherally on the issue.

Fifteen months ago, the justices cleared the way for same-sex marriages in California to resume after it ruled private parties did not have “standing” to defend a voter-approved ballot measure barring gay and lesbian couples from state-sanctioned wedlock.

More importantly, the high court also rejected parts of the federal Defense of Marriage Act in its 5-4 “Windsor” decision, citing equal protection guarantees to conclude same-sex spouses legally married in a state may receive federal benefits, such as tax breaks.

That federal question now morphs into the higher-stakes state jurisdiction, where marriage laws have traditionally been controlled, and where the equal protection issues will ultimately be resolved.

By CNN’s count, various individuals and gay rights groups have launched more than 80 pending marriage equality lawsuits in all 31 states with current bans. A Supreme Court review would put all that litigation on hold.

However, the nine justices had complete discretion to stand on the sidelines for now and wait for a majority of these state battles to play out, or for a federal appeals court to uphold a ban.

CNN’s Steve Almasy contributed to this story.