Challenge to Virginia’s ban on same-sex marriage creates an uneasy alliance

The legal forces challenging Virginia’s ban on same-sex marriage have been brought together in something like a shotgun wedding, uniting lawyers who previously clashed over the best legal strategy to pursue a common goal.

One side (of the same side) are celebrity lawyers Theodore Olson and David Boies, who have urged that bans on same-sex marriage should be met with a swing-for-the fences challenge to convince federal courts that the restrictions are unconstitutional.

Their uneasy allies in Virginia are the American Civil Liberties Union and Lambda Legal, groups that in the past have advocated a more measured and incremental state-by-state strategy.

Both approaches found some success at the Supreme Court last June. Now the two sides have been yoked as they and other challengers across the country embark on their shared goal: persuading the justices to establish a constitutional right to marriage that must be extended to same-sex couples no matter where they live.

But if they are now united in purpose and strategy, past tensions, egos and disagreements over who deserves credit for the progress are still on display as the advocates try to position themselves be the ones to take that potentially historic case to the Supreme Court.

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This week, the focus shifts to Virginia, which has one of the country’s strictest bans on same-sex marriage and anything that resembles it. The American Foundation for Equal Rights (AFER), which employs Olson and Boies, and the ACLU have filed separate cases in the commonwealth.

On Tuesday, a panel of the U.S. Court of Appeals for the 4th Circuit in Richmond is to review the decision of a Norfolk district judge in the AFER case. The suit was brought on behalf of two men who want to marry and a lesbian couple wed in California who want Virginia officials to recognize their union.

U.S. District Judge Arenda L. Wright Allen sided with the couples in February, saying that the commonwealth’s ban violates the Constitution’s guarantees of equal protection and due process, and that there was no good reason for the government’s “intrusion.”

After Wright Allen ruled, a federal judge across the state put on hold the ACLU’s case, a class- action lawsuit on behalf of the commonwealth’s estimated 14,000 same-sex couples.

With their case stymied, the ACLU and its team of lawyers sought to become a party in the AFER case. Olson and Boies objected, saying the organization would not add any arguments that were not already being made.

The two sides have a past. The ACLU opposed AFER’s 2009 decision to challenge in federal court California’s Proposition 8, which barred same sex-marriage. Like others who had been in the gay rights movement for years, the ACLU worried that the strategy of pressing federal courts to find that same-sex couples have a constitutional right to marry was premature and risky, without a proper legal foundation.

When AFER filed the California suit anyway, the ACLU put aside its reservations and tried to join it. Olson and Boies successfully kept them out. They were unable to persuade the 4th Circuit to do the same in the Virginia case.

The tiff may seem small, especially since there is consensus in the gay rights legal community that now is the time to press for constitutional recognition.

The number changes almost daily, but there appear to be constitutional challenges in all but four of the more than 30 states that do not allow same-sex marriage. “It’s less and less important which individual lawyer or which state” brings the case to the Supreme Court, said Evan Wolfson, founder of the group Freedom to Marry.

But it is clear that some in the gay legal establishment, which for years painstakingly built an incremental path toward marriage, remain resentful of the attention given to the “stop waiting” approach of Olson and ­Boies.

Backed by Hollywood activists and fund­raisers, the conservative Republican Olson and the liberal Democrat Boies, who represented opposite sides in Bush v. Gore, became an irresistible attraction for the news media when they shrugged off warnings from longtime activists that they were moving too quickly.

The two prevailed when, after a highly publicized trial, a federal judge in San Francisco ruled for the first time that a voter-
approved state ban on same-sex marriage was unconstitutional.

Olson made no apology for the attention the case got. “The more attention you bring to this issue, the more people understand what the human dimensions are of discrimination,” he said in an interview last week.

But Olson’s larger goal fizzled at the Supreme Court last June, when the court disposed of the Proposition 8 case on procedural grounds. The ruling, in effect, allowed same-sex marriages to resume in California but did not address the bigger constitutional question.

Another case the justices decided at the same time had a bigger impact.

In United States v. Windsor, the court ruled 5 to 4 to overturn part of the Defense of Marriage Act (DOMA) and require the federal government to recognize same-sex marriages performed in states where they are legal.

The court’s reasoning in Windsor has been cited in an unbroken string of federal court decisions that have struck down state bans on same-sex marriage in Utah, Oklahoma, Texas and Michigan as well as Virginia. It has been the basis for judges in a handful of other states to say same-sex marriages performed elsewhere must be recognized.

The DOMA case was the product of established gay rights groups such as Gay and Lesbian Advocates and Defenders (GLAD), and supporters of the incremental approach say the importance of the Windsor decision validates their strategy.

Boies and Olson, like other challengers, rely in their current challenges on the Supreme Court majority’s reasoning in Windsor. But that does not mean the Proposition 8 case, Hollingsworth v. Perry, did not advance the cause, Olson argued.

The years of litigation over Proposition 8, he said, “had an intangible impact on public opinion, which had an impact on state legislatures, and an intangible and immeasurable and impossible to predict impact on judges.”

The outsider status of AFER and the Olson-Boies team has been amplified by reaction to a new book, “Forcing the Spring,” by former Washington Post and current New York Times reporter Jo Becker, who had inside access to the Proposition 8 team to chronicle its efforts.

The book has received critical praise, but it deepened divisions in the gay legal establishment over the duo. (Those divisions could grow next month when Olson and Boies publish their book on the case, “Redeeming the Dream.” There is also an HBO documentary about the case.)

William Eskridge, a Yale Law School professor and longtime strategist in the gay rights movement, is sharp in his judgment of AFER’s role in Virginia.

“Olson and Boies moved in to try to get the case that would give more glory to them,” he said, whereas “the ACLU and Lambda are in it” for the long run.

That is not how the Virginia lawyers who filed the case see it. Tom Shuttleworth and Robert Ruloff prepared the case for a couple, Timothy Bostic and Tony London, Ruloff knew.

“We got plenty of solicitations” from other groups that wanted to take over after the case was filed last July, Shuttleworth said. But a lawyer at their firm went to elementary school with a lawyer at Olson’s firm who worked on the Proposition 8 case. The Virginia lawyer approached the AFER team to see if it would join the case.

When the answer was yes, “we were on that like a hobo on a cheap suit,” Shuttleworth said.

Adam Umhoefer, AFER’s executive director, acknowledged that the group reached out to lawyers in Utah and Oklahoma after federal judges­ knocked down bans in those states. He said the organization has no plans to get involved in other cases but is open to the possibility.

James D. Esseks, director of the ACLU Lesbian Gay Bisexual Transgender and AIDS Project, said his group is involved in 11 states where there are challenges. He played down any dispute with his new colleagues in Virginia.

“A dispute over timing back in 2009 is irrelevant now,” he said. “Everyone is working well together.”

At Tuesday’s scheduled hour-long hearing, lawyers representing two county clerks defending Virginia’s laws are to split 30 minutes of argument time. On the other side, the allocations are more precise.

Olson will get 13 minutes, Esseks will receive seven. The remaining 10 minutes will go to Virginia’s solicitor general, who will join the call to strike down the state’s law.

It is another unusual facet of the case. Soon after taking office, Attorney General Mark R. Herring (D) announced that he felt the state’s restrictions were unconstitutional and that he would not defend them.

It was a remarkable turnabout, partly because Herring’s predecessor, Ken Cuccinelli (R), had been an adamant and outspoken proponent of the laws.

The job of attorney general was open because Cuccinelli ran for governor, unsuccessfully. Olson said he has “taken some heat,” given Cuccinelli’s views on gay rights, for contributing $1,000 to the Republican’s campaign.

The legal fight for gay marriage has been the most moving case of his career, Olson said, but “I’m still a Republican.”

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006.
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