As we wait for the Supreme Court to answer the Fourth Circuit’s refusal to stay their ruling in Rainey v. Bostic, the Virginia marriage case, I wonder what possessed them to make such a refusal despite the Supreme Court’s two previous rulings granting a stay in similar cases, over the objections of the Tenth Circuit. While we would hope for denial of the requested stay, it is almost automatic in such cases, especially where one has already been granted. It says little, if anything about the merits of the case or the chance of success. So why is the Fourth Circuit seemingly asking to be overturned–judges do not like that.
My own thoughts have been that they wanted to dare the Supreme Court to overrule them with the strong likelihood that the case will be resolved in favor of marriage equality in the very near future, and the stay will have been exposed as unnecessary. Of course, I could be guilty of wishful thinking, but over thirty federal judges, including four circuit court judges agree with me.
A friend, who knows well people who clerked for the judges in this case, offered a slightly different perspective, which I adopt. She said that the “cranky old men” on the Fourth Circuit could be expressing their annoyance with the Justices, for erring in Windsor and making the lives of the circuit court judges needlessly difficult. The error, let me hasten to explain, was not that the Supreme Court decided the case wrongly, but that it did not go far enough.
Before the decision in Windsor came down, I hoped that the court would recognize the chaos that would ensue if they ruled as they eventually did, leaving the larger question of the constitutional right to marry the person of your choice for another day. Obviously this decision led to the many cases claiming the right to marry and to have one’s marriage recognized, but it led to many other subsidiary issues that have surely plagued the court system since then. My imagined example was of a couple who worked, at least one of them, for the federal government in Washington, and could have their employment benefits changed by moving from one block to another (from one state to another). That would lead to unequal treatment of two federal employees, similarly situated, and sitting next to each other at work. There would also be the case of a federal employee assigned from a state that recognized her marriage to one that did not. We know that groups such as Lambda Legal have specialists who advise people on how to navigate this mess. Since I do not spend my time worrying about the difficult lives of federal judges, I did not consider that they might well feel aggrieved in their own right.
And so it seems that they may have done; and sent a message to the Supreme Court, by refusing to stay their decision, thus allowing our friends to marry, but at the same time, allowing them to dismiss pending cases as moot.