Proposition 8 legal super team David Boies and Ted Olson have set their sights on a new target: Virginia. Their aim? To bring marriage equality to the entire nation.
David Boies and Theodore “Ted” Olson once argued for opposite sides during the Bush v. Gore United States Supreme Court Case of 2000 that ultimately led to George W. Bush taking office as President of the United States for another term.
Today, they are much more famous for being the liberal and conservative duo who took the legal fight over the California anti-gay marriage Proposition 8 ballot initiative all the way to the Supreme Court of the United States. While the Proposition 8 case established several important legal arguments and brought marriage equality back to California, it didn’t have the solid wider impact that Boies and Olson had hoped for.
Now they have a new target: Virginia. They believe that a marriage equality case currently underway in the commonwealth is primed as a test case for what was established in the Proposition 8 ruling, and they are hungry to take this fight as far as it can go.
The addition of Olson and Boies to a case in Norfolk will probably 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 voters codified statutory bans on marriage equality by approving a constitutional amendment in 2006. The amendment, known as the Marshall-Newman Amendment, also prevents any official acting on behalf of or within the Commonwealth of Virginia from creating marriage-like partnerships like domestic partnerships, therein almost entirely blocking same-sex couples from the state and federal benefits open to married couples.
You might wonder, though, why the duo joined a suit in Virginia and not elsewhere?
Any state (or commonwealth) like Virginia that has a total ban on not just marriage equality but all same-sex partnership recognition is now especially vulnerable to legal challenge because, to paraphrase Olson’s own remarks, the more obvious the denial of rights, the easier the legal argument for remedy becomes, especially in a post DOMA Section 3 climate.
Second, Olson lives in Virginia so his joining the suit appears even more germane. Given that this also deals with a marriage that was carried out in California we see yet another tie to bind.
At the request of the Virginia administration, the suit Olson and Boies have just joined is on an expedited schedule and so it is expected that this legal fight will proceed relatively swiftly, with the legal team hoping to take this all the way to the Supreme Court of the United States where a win would potentially legalize marriage equality across America.
However, this is just one among a number of suits spanning 18 different states that are challenging at various court levels America’s gay marriage bans.
The other major case currently underway in Virginia is a federal lawsuit that was filed on August 1, 2013, by two same-sex couples who are represented by Lambda Legal and the American Civil Liberties Union.
The case challenges both the state’s own denial of marriage rights and its refusal to recognize same-sex marriages from other states. The couples have petitioned to have the suit recognized as a class action on behalf of all same-sex couples in Virginia. This week it was announced Plaintiffs are also seeking summary judgement in this case, believing that the denial of rights is so blatant that a full trial will not be needed.