Newly wed Arlington official Fisette buoyed by challenge to same-sex marriage amendment

Until recently, Jay Fisette figured that eventually Virginia would allow same-sex marriage, “but probably at the end of my lifetime.”

Fisette now has a more optimistic outlook. Why? Two well-known attorneys, David Boies and Theodore Olson, announced Monday that they plan to challenge Virginia’s ban on same-sex marriages. On Aug. 29, the Internal Revenue Service announced that same-sex marriages will be recognized for federal tax purposes, no matter where the couple resides. And the U.S. Supreme Court struck down a portion of the Defense of Marriage Act in June.

Then there’s the fact that Fisette (D), an Arlington County Board member for the past 15 years, got married.

Fisette, the first openly gay elected official in Virginia, married his longtime partner, Bob Rosen, a clinical psychologist who founded Healthy Companies International, at All Souls Unitarian Church in the District on Sept. 17, their 30th anniversary.

The marriage, legal in the District but not in Virginia, was prompted by the IRS decision, Fisette said this week.

“That was the key point,” he said. “It doesn’t matter where you live.”

Fisette is running for reelection this fall, facing Audrey Clement of the Green Party.

Fisette said he is heartened by the news of the latest legal challenge to the constitutional amendment. The Boies and Olson legal team overturned California’s 2008 ban on same-sex marriage.

“It sounds like they’ve strategically chosen Virginia,” he said. “They’re smart attorneys, and I assume they’ve seen a path forward.”

Virginia voters in 2006 approved the ban on same-sex marriage and civil unions and forbid recognition of unions performed elsewhere. About three dozen states do not allow same-sex marriage, and Virginia is one of 29 states that have put the ban in their constitutions. Thirteen states and the District of Columbia allow gay marriage.

The lawsuit spearheaded by Boies and Olson is the second legal challenge filed in Virginia over the ban on same-sex marriage. The American Civil Liberties Union of Virginia filed a federal class-action suit on Aug. 1 in the state’s western district seeking to overturn the constitutional amendment and all the statutes restricting who can marry, said Claire Guthrie Gastanaga, executive director of the ACLU of Virginia.

“We have a long history of trying to secure freedom of marriage for everybody, which is foundational to our work,” she said, citing the group’s role in successfully challenging Virginia’s ban on interracial marriage in the historic 1967 Loving v. Virginia decision. “We’re here because Virginia is an important state, and Virginia has one of the most expansive . . . bans on marriage in the country.”

Fisette’s ceremony was small — but larger than he and Rosen first planned, he said. Just five years ago, the couple had a big anniversary celebration. Rather than imposing on friends and family for a second event, they said, they intended to make the wedding small.

“Our mothers said, ‘Whether we’re invited or not, we’re coming,’ ” Fisette said. “My dad told [a sibling], ‘I thought they were already married.’ ”

He told his fellow board members of the wedding in an e-mail, saying, “It feels like we are eloping after 30 years together. . . . We now expect that marriage equality will actually arrive in the Commonwealth of Virginia in the next five years. And even though we’ve become like a set of old shoes, there’s a little bit more bounce in our step today.”

Fisette said he’s received support from the public.

“Every third person says something along the lines of, ‘It gives me hope in this country again,’ ” Fisette said.

Patricia Sullivan seeks out news about Alexandria and Arlington County for the Washington Post.
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