UPDATE: Virginia lawsuits escalate

The high-powered legal team that brought down California’s ban on same-sex marriage announced Monday (September 30) it will now seek to strike down a ban enacted in Virginia in 2006.

The high-powered legal team that brought down California’s ban on same-sex marriage announced Monday (September 30) it will now seek to strike down a ban enacted in Virginia in 2006.

Ted Olson and David Boies will lead the team sponsored by the American Foundation for Equal Rights to win a lawsuit against Proposition 8 to go after Virginia’s constitutional amendment banning same-sex couples from marrying. The team is signing onto a lawsuit that was filed without organizational assistance by a gay male couple in Norfolk. The lawsuit, Bostic v. McDonnell, has since been joined by a lesbian couple married in California who seek recognition of their marriage in Virginia.

Meanwhile, Lambda Legal and the ACLU, two prominent national legal groups, announced Monday they were filing a motion for summary judgment in a lawsuit they filed in Virginia, also seeking to strike down the ban. A federal judge had already scheduled their case, Harris v. McDonnell, for trial next summer. If the summary judgment motion is granted, the judge could make a ruling sooner based on briefs and oral arguments instead.

In a press conference in Washington, D.C., Monday morning, Olson and Boies both pointed to the historic role Virginia has played in legal matters involving marriage.

Olson, who has lived in Virginia for more than 30 years, said in a telephone press conference later that morning that, “as a Virginian, I feel particularly disappointed” about Virginia’s ban on marriage for same-sex couples. He noted it not only denies marriage licenses to same-sex couples, but also denies civil unions, other types of relationship contracts, and recognition of legitimate marriage licenses obtained in other states.

“It does great harm to individual citizens of Virginia and their children,” said Olson. He added that the U.S. Supreme Court’s rulings last June in the Defense of Marriage Act (DOMA) case and the case regarding California’s Proposition 8 “lead the way for the courts to decide that this kind of discrimination is not consistent” with the constitutional rights to due process and equal protection.

“We feel this is the vehicle that potentially might go to Supreme Court and vindicate rights for all citizens… like Loving did.”

Boies also highlighted the historic underpinnings of waging the marriage equality battle for same-sex couples in Virginia.

“Virginia gave us the first marriage equality case—and the one that most clearly established that the right to marry the person you love is a fundamental right of all Americans,” said Boies, referring to the landmark Loving v. Virginia case that struck down state bans against interracial marriage in 1967. “It’s fitting, then, that Virginia be the battleground for another great test of that principle.”

Olson acknowledged that there is a second lawsuit filed in a federal district court in Virginia, seeking to strike down the ban. He said the Bostic case was the first to be filed and that the attorneys who filed that case in July invited Olson and Boies to participate. The Bostic team also filed a motion this month seeking to have their clients explicitly excluded from the Harris class action lawsuit, a motion that seemed to suggest some tensions between the two cases’ legal teams. Such tensions existed when the Olson-Boies team first announced their lawsuit against the Proposition 8 trial.

But Olson said the lawyers on the Bostic team “respect” and “get along with the people in the other litigation” and that it is simply ”appropriate” for the Bostic plaintiffs be excluded from the Harris class.

According to the motion seeking to exclude the Bostic plaintiffs from the class action in the Harris lawsuit, the Bostic attorneys want to “ensure that they can litigate their…action to final judgment on the expedited schedule agreed to by the parties in that action.”

The Harris case is before Judge Michael Urbanski, an Obama appointee. He has set October 29 to hear motions to certify the class and motions to dismiss the case, and has scheduled a bench trial for June 2-13, 2014.

The Harris class action would represent both same-sex couples denied the right to marry in Virginia and couples already married in another state but being denied recognition in Virginia.

“Virginians denied the freedom to marry have no meaningful legislative path to gain the same protections for their families as other loving and committed couples,” said Claire Guthrie Gastañaga, executive director of the ACLU of Virginia, in a press release Monday morning, just prior to the Olson-Boies press conference announcing their news. “That’s why we’ve had to ask the federal court to overturn Virginia’s sweeping bans on recognizing same-sex relationships. We shouldn’t have to go to federal court to get Virginia to do what’s right.”

The Lambda-ACLU lawsuit, Harris v. McDonnell was filed August 1 in the U.S. District Court for the Western District of Virginia, in Harrisonburg. Its named plaintiffs are two lesbian couples, Joanne Harris and Jessica Duff, and Christy Berghoff and Victoria Kidd, as well as “all others similarly situated.”

The Olson and Boies’ team lawsuit was filed in July by Timothy Bostic and Tony London, who have been together for 24 years. Another couple, Mary Townley and Carol Schall, who were married in California in 2008, was added to the lawsuit early this month in an amended complaint filed in U.S. District Court for the Eastern District of Virginia before Judge Arenda Wright Allen, also an Obama appointee. No decision has been made on whether the Bostic judge will hold a trial or rule based on written briefs and oral argument. The next round of briefs in that case are due October 31.

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