Lawyers Olson and Boies want Virginia as same-sex marriage test case

September 30, 2013

The legal team that overturned California’s ban on same-sex marriage is targeting Virginia to launch another challenge aimed at convincing the Supreme Court that gays and lesbians have a constitutional right to marry no matter where they live.

The American Foundation for Equal Rights — with its attention-getting political odd couple of conservative Republican lawyer Theodore Olson and liberal Democrat David Boies — will announce Monday it is joining a lawsuit against what the lawyers called Virginia’s “draconian” laws prohibiting same-sex marriages, the recognition of such marriages performed where they are legal, and civil unions.

It is one of dozens of lawsuits filed across the nation by same-sex marriage activists who say they feel emboldened by the Supreme Court’s decisions in June that overturned the federal Defense of Marriage Act (DOMA) that forbade recognition of same-sex marriages and separately allowed such unions to resume in California.

Despite the victories, the justices stopped short of finding that the Constitution requires that gays and lesbians be allowed to marry and left the matter, for now, to the states.

There are dozens of lawsuits filed in state and federal courts in 18 states, according to the Human Rights Campaign, and on Friday, a state judge in New Jersey ruled same-sex marriages must be allowed there. Gov. Chris Christie (R) is appealing.


Attorneys Theodore Olson, left, and David Boies depart the Supreme Court after no decision in the Defense of Marriage Act case on June 24. (Bill O’Leary/The Washington Post)

But the ultimate goal is the recognition of a constitutional right, such as when the Supreme Court struck down Virginia’s ban on interracial marriages in the 1967 Loving v. Virginia decision.

The addition of Olson and Boies to a case in Norfolk willprobably bring more attention to the challenges to Virginia’s ban on same-sex marriages. The state’s voters in 2006 amended the state constitution to ban such marriages, as well as civil unions, and to forbid recognition of unions performed elsewhere. Thirteen states, including Maryland, plus the District of Columbia, allow gay marriage.

Olson said AFER was invited to join the case by attorneys for the plaintiffs, Norfolk residents Timothy Bostic and Tony London, whose marriage application was turned down, and Carol Schall and Mary Townley, who have a 15-year-old daughter and whose marriage in California is not recognized by the commonwealth.

Virginia is an “attractive target,” said Olson, who lives in the state, because its rejection of same-sex marriage and civil unions is so complete.

“The more unfairly people are being treated, the more obvious it is that it’s unconstitutional,” Olson said.

Olson and Boies, who were opposing counsel in the 2000 Supreme Court showdown in Bush v. Gore, received enormous attention when they teamed up to challenge California’s Proposition 8, which was passed by voters in 2008 to stop the same-sex marriages that the state’s high court had authorized.

The result was a full trial before U.S. District Judge Vaughn R. Walker, who ruled that the California ban violated the Constitution’s guarantee of equal protection.

The case, Hollingsworth v. Perry, reached the Supreme Court last term. But the justices did not rule on the constitutional question, instead finding that those who were appealing Walker’s ruling did not have the legal standing to bring the challenge. Same-sex marriages resumed in the state almost immediately.

Olson said he did not anticipate a trial in the Norfolk proceedings before U.S. District Judge Arenda Wright Allen, but the record from California “is a great foundation for us which we can convey into the federal courts in Virginia.”

This Virginia case is also attractive because it is moving quickly, at the state’s request. A second challenge, filed in the Western District of Virginia, is on a slower track.

Although Virginia’s constitutional amendment was easily approved, recent polling shows a majority of residents favor legalizing same-sex marriage. But Republicans who control the state’s political leadership and legislature are opposed, and removing the constitutional amendment would be difficult.

The constitution can be amended by voters only after a constitutional convention or if a proposed amendment is passed twice by the General Assembly, with an election occurring between the two votes.

While the Perry decision was important to Californians, the court’s 5-to-4 DOMA ruling in U.S. v. Windsor provides same-sex marriage supporters with the most hope. Even dissenting Justice Antonin Scalia said that while the decision purported to support state rights, it provided a road map for challenges to state bans.

The Norfolk complaint makes extensive use of Justice Anthony M. Kennedy’s majority opinion that DOMA “places same-sex couples in an untenable position” and “humiliates” the children raised by such couples.

The lawsuit compares the Virginia ban with Kennedy’s finding that “DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.”

The Windsor decision “created a sense of urgency,” said Dale Carpenter, a University of Minnesota law professor who has studied the issue, especially because polling did not indicate the kind of public backlash as other court rulings that granted gay rights.

Since the decisions, Justice Ruth Bader Ginsburg has officiated at a same-sex marriage, and last week former president George H.W. Bush was one of the witnesses for the marriage of a lesbian couple in Maine.

Sarah Warbelow, state legislative director of the Human Rights Campaign, said: “We had an opportunity to see where the Supreme Court was standing on the issue, and I think attorneys are increasingly confident that the court is ready to take up the whole nine yards.”

Suits have been filed across the country, many by the American Civil Liberties Union, and another leader in the race back to the Supreme Court might come from Pennsylvania. It has no constitutional prohibition and the Democratic attorney general has said she thinks the state law banning same-sex marriage is unconstitutional.

But some supporters of same-sex marriage fear the suits are coming too fast. The justices turned down the chance to find a constitutional right to marry only months ago, and Kennedy’s opinion in Windsor also contained his caution that “history and tradition” give states the right to define marriage.

After giving the victories, the slim Supreme Court majority might favor letting the political process, rather than the judicial, take the lead.

Olson is unmoved by that theory.

“I’m not going to get into the justices and what they each said and what Justice Scalia said,” Olson said. “Given what was said in DOMA [decision] and given the record we made in California and given what we’re going to establish in Virginia, we’re going to be able to persuade a majority of the court that this is the right thing.”

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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