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David Boies (left) and Theodore Olson.
Acclaimed attorneys Theodore Olson and David Boies, whose challenge to California's Proposition 8 restored marriage equality to California, have joined a lawsuit challenging Virginia's ban on same-sex marriage. If successful, the Virginia lawsuit could establish marriage equality nationally.
Robert Barnes reports in the Washington Post that the American Foundation for Equal Rights, the organization formed by Chad Griffin and Rob Reiner to support the challenge led by Olson and Boies to Proposition 8, has announced that they will join a lawsuit against Virginia's laws that prohibit not only same-sex marriage and civil unions, but also the recognition of such marriages performed where they are legal.
Virginia's laws, which Olson and Boies have described as "draconian," make the state a prime target in the quest to win a Supreme Court declaration that would establish same-sex marriage as a fundamental right.
As gratifying as were 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, they fell short of finding that the Constitution requires that gay and lesbian couples be allowed to marry.
Olson and Boies are seeking the recognition of a constitutional right to same-sex marriage similar to the right of interracial couples to marry that was declared in the 1967 Supreme Court decision in Loving v. Virginia.
Olson told Barnes that AFER was invited to join the Virginia 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, which resulted in the Supreme Court choosing George W. Bush President of the United States, teamed up in 2009 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 Walker. In the course of the trial, which spanned twelve days in January and two days in June 2010, Olson and Boies systematically built their case around the history of marriage, the harm that denial of marriage rights does to gay and lesbian couples and their children, and the irrationality of the ban.
Introducing a massive amount of evidence, they demonstrated that Proposition 8 was enacted out of animus against homosexuals and that it caused great harm to gay men and lesbians for no rational governmental purpose.
Judge Walker ruled that the California ban violated the Constitution's guarantee of equal protection.
The case 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."
The Virginia case is also attractive because, at the state's request, it is expected to move quickly.
The Norfolk complaint makes extensive use of Justice Anthony M. Kennedy's majority opinion in Windsor 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."
Some supporters of same-sex marriage have expressed fear that the lawsuits are coming too quickly. The Court, they contend, turned down the chance to find a constitutional right to marry only months ago, and Kennedy's opinion in Windsor also contained the caution that "history and tradition" give states the right to define marriage.
Olson expressed skepticism of 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."
The video below profiles two of the plaintiffs in the case.
The other two plaintiffs are profiled below.