Virginia’s ban on gay marriages is an unconstitutional wall built around same-sex couples and must be struck down, said Ted Olson, a former solicitor general for President George W. Bush who helped trigger a national wave of lawsuits challenging similar laws.
“Virginia erects a wall around its gay and lesbian citizens,” Olson told U.S. District Judge Arenda L. Wright Allen today in Norfolk, Virginia. “What the Commonwealth of Virginia is doing is taking away a fundamental right. It’s the right of individuals, not the right of state, that’s what’s being taken away.”
Olson, joined by David Boies, one of the country’s best known litigators, argued on behalf of two Virginia couples that the state’s 2006 constitutional amendment barring same-sex marriage violates the U.S. Constitution’s guarantee of equal protection under the law and discriminates against homosexuals.
Allen, named to the bench by President Barack Obama in 2011, concluded the hearing saying,“You’ll hear from me very soon.”
Similar lawsuits are pending in states including Pennsylvania, Florida and Michigan. Gay marriage is now permitted in 17 U.S. states and in the District of Columbia. Lawyers on all sides see the issue as headed eventually for a decision by the U.S. Supreme Court.
In June the high court left standing an order ending California’s voter-approved ban on same-sex marriage without saying whether the same policies in other states should also be struck down. The California plaintiffs represented by Boies and Olson won after that state’s attorney general withdrew from defending the ban and the Supreme Court ruled its supporters had no legal standing to enter the case.
Virginia Attorney General Mark Herring, who took office on Jan. 11, refused to defend the state’s voter-approved measure, making him the fourth state attorney general to decline to argue for gay-marriage bans. He compared the amendment to the state’s prohibition on interracial unions overturned by the U.S. Supreme Court in 1967.
Lawyers for two county court clerks and the state’s registrar of vital statistics stepped in to defend the measure.
They argued that traditional marriage is an “ancient institution” whose intent is to serve a range of legitimate state interests including having most children raised by their biological parents.
Austin Nimock, a lawyer for the defense who’s part of the conservative advocacy group Alliance Defending Freedom, said a ruling against the ban would “change the basic concept of marriage in Virginia.”
David Oakley, representing Norfolk Circuit Court Clerk George E. Schaefer, said “if there truly has been a shift in political opinion, it is more appropriate to allow the General Assembly and the voters to make that decision.”
“We are not dealing with discrimination against homosexuals but same-sex couples,” he said, asking the court to throw out the suit. “That requires a new classification.”
Olson responded that the majority doesn’t get to determine basic rights for the minority. He cited cases where Virginia stood against minority rights including desegregation, interracial marriage, and allowing women to attend the Virginia Military Institute, a state school.
“Marriage is not all about children,” Olson said, pointing out that some couples marry too late to have children and others choose to remain childless. “It’s about freedom.”
Virginia’s solicitor general, Stuart A. Raphael, arguing for the Attorney General’s office, said the state won’t make “the mistakes our predecessors made.”
The two couples asked Allen to rule without a trial, saying a ruling in their favor was inescapable.
“The Supreme Court of the United States recognized that ‘marriage is one of the civil rights of man, fundamental to our very existence and survival,’’ plaintiffs Timothy Bostic and Tony London said in a complaint filed in July.
Boies, of Boies Schiller & Flexner LLP, and Olson, of Gibson Dunn & Crutcher LLP, became famous opponents after the contested 2000 election between George W. Bush and Al Gore went to the Supreme Court. Olson represented Bush while Boies was Gore’s lawyer. Olson later served the Bush administration as solicitor general, the federal government’s top litigator and Supreme Court advocate.
Herring’s decision not to defend the ban days after being sworn in struck a nerve in a state that’s almost evenly divided politically and deeply split over social issues. Some Republican lawmakers are calling for his impeachment.
Herring, a Democrat, beat Republican Mark Obenshain by 907 votes out of more than 2.2 million cast in November. Obenshain’s campaign positions were largely in line with the previous Attorney General Kenneth Cuccinelli, a Republican known for promoting restrictions on abortion, refusing to protect gays in state government and investigating a former University of Virginia climatologist who argued human activity is a cause of climate change.
As incoming Democratic governor also replacing a Republican, Terry McAuliffe had promised a period of bipartisanship. It ended with Herring’s change of position in the case.
Bostic, a professor at Old Dominion University, and London, a U.S. Navy veteran who has been a real estate agent for 16 years, have been together since 1989, according to court papers. They are joined in their suit by another gay couple, Mary Townley and Carol Schall, who were denied a marriage license in Chesterfield County.
The case is Bostic v. McDonnell, 13-cv-00395, U.S. District Court, Eastern District of Virginia (Norfolk).
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