Olsen and Boies Suit Up to Challenge Virginia’s Marriage Equality Ban

Jim Burroway

October 2nd, 2013

Late Sunday night following a scoop by the Washington Post, the fabled legal team that overturned California’s Prop 8 announced that they will join a federal lawsuit to overturn Virginia’s constitutional amendment banning same-sex marriage. The Post reported that Ted Olson and David Boies joined the Virginia lawsuit that was filed last July after a Norfolk couples was denied a marriage license:

Olson said AFER was invited to join the case by attorneys for the plaintiffs, Norfolk residents Timothy Bostic and Tony London, whose marriage application was turned down, and Carol Schall and Mary Townley, who have a 15-year-old daughter and whose marriage in California is not recognized by the commonwealth.

Virginia is an “attractive target,” said Olson, who lives in the state, because its rejection of same-sex marriage and civil unions is so complete.

“The more unfairly people are being treated, the more obvious it is that it’s unconstitutional,” Olson said.

Olsen and Boise prevailed in overturning California’s Prop 8, but that happened without the Supreme Court directly ruling on the constitutionality of California’s same-sex marriage ban. Because the California case didn’t set a national legal precedent, the Norfolk case is expected to turn more on Justice Anthony Kennedy’s legal opinion for U.S. vs. Windsor, which overturned Section 3 of the Defense of Marriage Act. Kennedy overturned the federal prohibition against recognizing same-sex marriages, in part, because of its “disparaging” effects on gay couples and their children. When it comes to disparaging effects, it’s hard to find a juicier target than Virginia’s 2006 ban, which reads:

Only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions. This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.

The amended complaint for the Norfolk case, Bostic v Rainey, which was filed on September 3 by the couples’ original lawyers, already made extensive use of Kennedy’sWindsor opinionFor example:

In November 2006, a majority of Virginia voters ratified the “Marshall- Newman Amendment” to the State Constitution. This Amendment, which defines marriage as a union between “one man and one woman,” expressly deprives gay and lesbian individuals of the right to marry. By prohibiting same-sex couples from marrying, Virginia “places same-sex couples in an unstable position,” “demeans” same-sex couples, “humiliates tens of thousands of children now being raised by same-sex couples,” and “instructs all [State] officials, and indeed all persons with whom same-sex couples interact, including their own children, that their [relationship] is less worthy than the [relationships] of others.” Windsor 133 S. Ct. 2675, 2694-96 (2013).

…In addition to these significant legal implications, Virginia’s statutory and constitutional provisions deny gay and lesbian residents of Virginia and their children the personal and public affirmation that accompanies marriage. Virginia’s prohibition of marriage of same-sex couples instructs “all persons with whom same-sex couples interact, including their own children” that their relationship is less worthy than those of couples in State-sanctioned marriages. Windsor, 133 S. Ct. at 2696. Without the legal ability to marry and build a family, same-sex couples are excluded from the fabric of Virginia’s social structure.

Virginia law also fails to honor the laws of thirteen other states and theDistrict of Columbia that allow same-sex marriage, by providing that lawful marriages from those jurisdictions are “void in all respects” and by stipulating that any contractual rights from such valid marriages “are void and unenforceable” in the Commonwealth of Virginia. By refusing to acknowledge lawful same-sex marriages from other states, the Commonwealth “ensure[s] that . . . those unions will be treated as second-class marriages for purposes of [Virginia] law.” Windsor, 133 S. Ct. at 2693-94. Virginia’s laws thereby “undermine[] both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of [the Commonwealth’s] recognition.” Id. at 2694. They “impose a disadvantage, a separate status, and so a stigma upon” same-sex couples whose legal marriages are disregarded by the State and “humiliate[] tens of thousands of children now being raised by same-sex couples.” Id. at 2693-94.

The unmistakable purpose and effect of Virginia’s far-reaching restrictions is to enshrine in Virginia’s Constitution and statutory code that gay men and lesbians are “unequal to everyone else,” Romer v. Evans, 517 U.S. 620, 635 (1996), that their committed relationships are ineligible for the designation “marriage,” and that they are unworthy of being treated with “dignity and integrity.” Windsor, 133 S. Ct. at 2694.

After the Windsor decision, there have been a slew of lawsuits lodged in Federal Courts around the country challenging several state marriage equality bans. Another case was filed in Virginia by the American Civil Liberties Union and Lambda Legal on behalf of two lesbian couples in Winchester and Staunton. Chris Geidner notes that with all of those lawsuits in play, the “clock is ticking” to see who will get to argue the issue before the U.S. Supreme Court:

As such, Olson and Boies know the clock is ticking and that some case is going to present the issue again to the Supreme Court in short order. With Monday’s announcement, the duo aim to place their marker on the map with Bostic and London’s case.

Kathy

October 2nd, 2013

We celebrated Pride on Saturday in Richmond. It was nice to top off the weekend with this news about Olson & Boies. Given the nuts running for statewide office here, we need all the good news we can get.

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