READ: Virginia Couple’s Lawsuit Challenging State’s Marriage Equality Ban

Over at The Bilerico Project, Michael Hamar has posted a copy of the challenge to Virginia's marriage discrimination amendment that we reported on last week.

Says Hamar:

Bostic, LondonThe basic players in the case are the plaintiffs, Timothy B. Bostic, a Professor at Old Dominion University and his partner, Tony C. London, a successful Norfolk area realtor (both pictured right). They have been a couple for over 25 years. The defendants are Robert F. McDonnell, the Governor of the Commonwealth of Virginia, anti-gay zealot Kenneth T. Cuccinelli, the Attorney General of the Commonwealth of Virginia, and George E. Schaefer, III, the Clerk of the Circuit Cort for the City of Norfolk, whose office refused to issue a marriage license to the plaintiffs.

The marriage amendment challenge states, among other things, that Virginia law "fails to honor the laws of thirteen other states and the District of Columbia, which allow for same-sex marriage, by providing that such marriages are 'void in all respects; and by stipulating that any contractual rights from such valid marriages 'are void and unenforceable; in the Commonwealth of Virginia….The disadvantage these laws impose upon gays and lesbians is the result of disapproval or animus against a politically unpopular group. Accordingly, these laws violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by casting gays and lesbians into disfavored legal status and categorizing them as 'second-class citizens."

Check out the full complaint HERE, which leads off with a great reference to Loving v. Virginia, the landmark Supreme Court case that invalidated laws prohibiting interracial marriage.


  1. Syzygy says

    Good for them, but as a Virginian, the timing is bad just before the governor’s election. Sure to get the right wing-nuts stirred up.

  2. MiddleoftheRoader says

    This lawsuit is another example of too many people trying to jump on a bandwagon perhaps without giving more thought to strategy and tactics.

    On the one hand, the Virginia law is one of the most restrictive in the US. It not only outlaws marriage, but it outlaws civil unions, it forbids the state to recognize marriage or civil unions from other states, and — most significantly — it even says that the state won’t recognize ANY “legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage”. In other words, it is so broad that the animus and discriminatory intent are obvious.

    Unfortunately, the two guys bringing the lawsuit may not have the standing to challenge Virginia’s refusal to recognize civil unions or marriages from other states, or the legal rights associated with those civil unions or marriages — because the two guys did not go thru a civil union or marriage in another state. Such a couple moving from another state into Virginia would have the best case, but these guys don’t fit into that category.

    Basically, the claim they’ve made is that they can’t get married in Virgina. They may win, or they may lose (although Virginia judges, even federal judges, have a history of being very conservative — a Virginia federal judge ruled that the health care law was unconstitutional). Also, the right-wing is running one of the most conservative candidates for Governor, and he’s likely to play up this lawsuit in every church in Virgina (yes, Virginia probably has more churches than Alabama).

    Good luck to them, but these marriage suits that keep popping up everywhere hold a real chance of disastrous results. And Ted Olsen and David Boies are not handling these suits!

  3. Liam says

    Have to agree with Syzygy and Middle — this seems well-intentioned but poorly thought out. From the case number, it appears this was assigned to Chief Judge Rebecca Beach Smith in Norfolk. She is infamous as being nasty, ill-prepared, and conservative. (I clerked in the ED VA and can confirm her reputation). If the need was felt to make this challenge in VA now, at least had this been filed in the Alexandria or Richmond divisions there would have been more of a shot of getting a sympathetic judge. Chalk this one up as a loss.

  4. Liam says

    Just noted the law firm that’s bringing this case. It’s pretty much a glorified ambulance chaser. I think one of the larger, well-respected VA firms might have stepped up and taken this pro bono had they been asked.

  5. Michael Ejercito says

    As an initial matter, the complaints against the governor and attorney general should be dismissed by the Court, since plaintiffs failed to allege any specific actions by the governor or attorney general that denied them marriage licenses.

  6. Chuckles says

    Agreed fairly lame.

    Defendants should be the Clerk who denied them the license and the head of whatever state department he works for or the department itself. No way the Att Gen.


    It would depend on who hired the Clerk. An elected clerk would answer to no one except his constituents,for he can not be summarily or unilaterally removed. If the Clerk was appointed, the appointing authority may be properly subject if that appointing authority has plenary power to terminate or restrict the clerk’s authority, in accordance with the Restatement of Agency.

    The governor of Virginia could be properly subject to a marriage equality suit if one of his agencies denies benefits to same-sex married couples that are available to opposite-sex married couples. After all, his agencies have no more authority than he does, and if an injunction restricts his authority, it follows that it restricts the authority of his agents. But unless he can unilaterally or summarily fire the Clerk, he can not be bound.