'Dream Team' Says Case Could End Gay Marriage Controversy
Marcia Coyle is chief Washington correspondent for The National Law Journal, an American Lawyer affiliate.
A lawsuit challenging Virginia's gay marriage and civil union bans may provide the vehicle for a final U.S. Supreme Court ruling on the constitutionality of same-sex marriage—at least that is the hope of the suit's "dream team" of lawyers.
However, just as they faced skepticism about the timing of their challenge to California's same-sex marriage ban, Theodore Olson of Gibson, Dunn & Crutcher and David Boies of Boies, Schiller & Flexner, are likely to provoke caution warnings despite and because of June 2012's rulings by the justices in two gay marriage-related cases.
Olson and Boies announced Monday that they and the American Foundation for Equal Rights were joining the legal team in Bostic v. Rainey, filed by two same-sex couples in the U.S. District Court for the Eastern District of Virginia. The suit was brought earlier in the summer by Thomas Shuttleworth of Virginia Beach, Va.'s Shuttleworth, Ruloff, Swain, Haddad & Morecock on behalf of Tim Bostic, an English professor, and Tony London, a real estate agent, who live in Norfolk and have been together for 24 years.
They are joined by Carol Schall, an autism researcher, and Mary Townley, who also works with special-needs youth, of Richmond, Va. Schall and Townley, who have been together for 28 years and have a 16-year-old daughter, were legally married in California in 2008.
The Virginia Marriage Amendment, also known as the Marshall-Newman Amendment, was enacted in 2006. It defined marriage under the Virginia Constitution as solely between a man and a woman and banned recognition of any legal status "approximating the design, qualities, significance, or effects of marriage" for gays and lesbians.
The Bostic lawsuit charges that the Virginia law violates the 14th Amendment's equal-protection and due-process clauses by singling out gays and lesbians for disfavored status
"We feel this is the vehicle that potentially might go to the Supreme Court and vindicate the rights of all citizens just as the Supreme Court did in Loving v. Virginia, more than 40 years ago," said Olson, referring to the justices' 1967 decision striking down laws prohibiting interracial marriage.
The high court's rulings last term, he added, "lead the way for the courts to decide this kind of discrimination is not consistent with 14th Amendment equal protection and due process."
In U.S. v.Windsor, a 5-4 majority invalidated a section of the federal Defense of Marriage Act defining marriage as between a man and woman. And in Hollingsworth v. Perry, a different 5-4 majority held that supporters of California's prohibition on same-sex marriage lacked standing to defend it. The latter decision opened the door to legal gay marriages in that state.
The closeness of the votes, as well as comments during oral arguments, particularly by Justice Anthony Kennedy, who wrote the Windsor decision, led some scholars and court watchers to caution that the court might not be ready to tackle the seminal constitutional question any time soon.
That is unlikely to deter Olson and Boies who, along with Shuttleworth, are asking the court in the Virginia lawsuit for summary judgment. Because of the trial record in the California case, they said, the court might not require a trial in Virginia. Briefing on the motion is expected by the end of October, according to Boies.
Also on Monday, a motion for summary judgment was filed in a second challenge to the Virginia law—a class action filed on August 1 in the federal court in Harrisonburg, Va. That suit, Harris v. McDonnell, is being handled by the American Civil Liberties Union, the ACLU of Virginia, Lambda Legal and Jenner & Block.