Lawsuit challenges state's same-sex marriage ban
Prop 8 lawyers join couples' lawsuit against Virginia's constitutional prohibition
The American Foundation for Equal Rights announced Monday that it would join a lawsuit challenging Virginia’s ban on same-sex marriage. The lawsuit aims to abolish the November 2006 Marshall-Newman Amendment to the Virginia State Constitution prohibiting same-sex marriage.
David Boies and Ted Olson, attorneys who successfully argued against Proposition 8 in California, will argue the case for AFER.
Boies and Olson were both listed among TIME magazine’s 100 most influential people in the world in 2010. They will join with the American Civil Liberties Union of Virginia to argue on behalf of Timothy Bostic and Tony London, a couple who attempted to receive a marriage license in Norfolk in July, but were turned away.
Bostic and London’s suit has since been joined by Carol Schall and Mary Townley, a lesbian couple who were married in California and want their marriage to be recognized by the Virginia government.“As a result of the state’s marriage laws, same-sex couples are denied countless important rights and benefits, including the right to receive spousal employment benefits from government employers, the right to make medical decisions for an ailing spouse and the right to jointly adopt children,” said Rebecca Glenberg, legal director of ACLU of Virginia. “Additionally, same-sex couples are denied the respect and dignity conferred by the status of marriage that opposite-sex couples take for granted.” Attorney General Ken Cuccinelli, the Republican gubernatorial candidate, is a noted opponent of same-sex marriage and will defend the ban in the lawsuit according to previous statements by his office.
In addition to defining marriage exclusively as the union of a man and a woman, the Marshall-Newman Amendment also stipulates that the Virginian government will not recognize gay couples that were legally married in other states.
Olson believes that the severity of the ban is an advantage for its opponents. “The more unfairly people are being treated, the more obvious it is that it’s unconstitutional,” he said in an interview with The Washington Post.
The constitutional ban, however, passed with broad support in a 2006 referendum after two consecutive General Assemblies approved its spot on the ballot. Though same-sex marriage and civil unions were already illegal in the state at the time, the amendment was promoted as an attempt to prevent future judicial overturn of those laws.
A recent poll conducted by Quinnipiac University showed that 50 percent of Virginia voters support legalizing gay marriage, and only 43 percent oppose it. The poll showed a partisan split on the issue, with 68 percent of Democrats supporting gay marriage and 68 percent of Republicans opposing it. Despite changing attitudes, any legislative attempt to overturn the ban would face complex constitutional overturn procedures and opposition in the Republican-controlled House of Delegates.“Any change to Virginia’s constitution must be approved by two consecutive legislative sessions before it can even be put to a vote of the citizens,” Glenberg said. “The difficulty of undoing this [ban] … is another reason why it must be challenged in court.”
It is possible the landmark U.S. Supreme Court case United States v. Windsor, which was resolved in June, could provide momentum for Boies and Olson in their fight against Virginia’s constitutional ban.
United States v. Windsor struck down Section 3 of the Defense of Marriage Act, which listed the federal definition of marriage as between a man and a woman and prevented legally married gay couples from receiving federal benefits. The ruling, however, only prohibits the federal government, not individual states, from refusing equal protection and benefits, necessitating Virginia’s state-level challenge.