“Today’s 4th Circuit decision is not yet final. It won’t be final until at least August 18th (it could be longer if a petition for rehearing is sought) and, of course, a stay of today’s decision by the 4th Circuit or the Supreme Court might be sought by the clerks who defended the Virginia marriage ban. In addition, while nothing in the decision is unique to Virginia law and, once it becomes final, it will be binding precedent on the district courts in North Carolina, South Carolina, and West Virginia, the decision itself does not order the clerks in North Carolina, South Carolina or West Virginia to do anything. Nonetheless, just as the Boulder County clerk decided to allow same-sex couples to marry once the 10th Circuit issued its decision invalidating Utah’s marriage ban, clerks in North Carolina, South Carolina or West Virginia might conclude that their obligation to follow the mandates of the U.S. Constitution (as now explicated by the 4th Circuit) overrides their duty to follow state law.
“The problem is that there would be some cloud over the validity of any marriages entered in derogation of state law before a final ruling governing that state has issued, as is true regarding the marriages entered by same-sex couples in Boulder and other counties in Colorado. While strong arguments exist that such marriages are valid, people need to remember that same-sex couples who married in San Francisco and Portland, Oregon before there was a ruling that those states’ marriage laws were ruled to be unconstitutional saw their marriages held void. Because there is no decision yet on that precise issue in Colorado, the clerk in Boulder is warning same-sex couples who marry there that their marriages might subsequently be held to be void. So, the best advice for same-sex couples is to wait until there are final rulings unless it is worth taking the risk that the marriage might be voided (for example, if a child of the couple may be born in the interim, or if one of the members of the couple is gravely ill).” – Jon Davidson, legal director for Lambda Legal, via email.