Lambda Legal and ACLU Seek to Intervene in Boies/Olson Virginia Marriage Case


Lambda Legal, the American Civil Liberties Union (ACLU), and the American Civil Liberties Union of Virginia filed a motion earlier this week in the U.S. Court of Appeals for the Fourth Circuit to intervene on behalf of all Virginia's same-sex couples and their families in Bostic v. Rainey.

BosticAs you may know, the American Foundation for Equal Rights, and the ACLU and Lambda Legal have been leading separate cases challenging Virginia's gay marriage ban. AFER's case has already had a hearing and in mid-February, Judge Arenda Wright Allen struck down Virginia's gay marriage ban based on their arguments.

The Fourth Circuit Court of Appeals now has the case.

Lambda and the ACLU want in on this now, and issued a press release announcing the motion:

"We represent a class of all same sex couples in Virginia for whom the denial of marriage inflicts a variety of harms, and they deserve to be heard," said Greg Nevins, Counsel in Lambda Legal's Southern Regional Office based in Atlanta. "The Bostic appeal could decide the fate of not only both couples involved, but also the entire class of over 14,000 same-sex couples in Virginia who we represent."

The Harris case is awaiting decision from the court. Once that decision is issued, it will be appealed to the Fourth Circuit. In the meantime, allowing the Harris class action to intervene in the Bostic case now will allow the two cases to be consolidated on appeal without delaying or disrupting either case.

"From the beginning, both of these cases have proceeded on parallel tracks, and for the good of all couples in the state, we hope it will remain that way," said Joshua Block, staff attorney with the ACLU Lesbian Gay Bisexual and Transgender Project. "This motion just ensures that all affected couples have their day in court."

The Bostic v. Rainey case is very well positioned to be the next marriage case heard before the Supreme Court and any groups who are there will get the benefit of a national spotlight and credit for its ultimate victory.

The Washington Blade notes that plaintiffs in Bostic aren't happy about the motion:

Matthew D. McGill, co-counsel for the plaintiffs in the Bostic case, questioned why the two groups petitioned the 4th U.S. Circuit Court of Appeals to join the Bostic case.

“The addition of new parties to the case at this late stage risks delaying the proceedings, and there is not a moment to lose when gay and lesbian couples and families across Virginia – and other states in the Fourth Circuit – are experiencing real harm,” said McGill. “We hope the Harris plaintiffs and their lawyers will continue to support our shared goal of marriage equality by filing an amicus brief alongside us.”

A source involved in the legal process who asked to remain anonymous told the Blade there are “grave and serious consequences for an unwarranted ACLU intervention.” These could include the possibility that other groups from West Virginia, North Carolina and South Carolina that fall under the 4th U.S. Circuit Court of Appeals’ jurisdiction could seek to join the case if allowed.

“If intervention were granted, it could adversely slow down the current appeals process – and time is critical when it comes to attaining marriage equality for all Virginians,” said the source. “There is not a day to lose. Groups like the ACLU can be supportive by simply filing amicus briefs.”

Stay tuned.


  1. shanestud says

    Despite all the good work and advocacy these various groups do you must remember that Lambda, HRC, ACLU and AFER are all organizations driven by donations and fund raisers. They compete for gay dollars. AFER seems to be getting a lot of media attention with their big court victories. I am sure these other fund raising groups don’t want to be left behind and could sure use a few wins too. No wonder they wanna get associated with AFER and take credit for upcoming big court decisions

  2. WOLF says

    Except if they’re consolidated, there can be no question that the law being taken down affects all couples in the state. I have no idea why the Harris case was filed as class action. If the ruling is facial, the law itself cannot be enforced at all, as opposed to simple injunctive relief for the plaintiffs alone. Class action status was not necessary.

  3. Pablo says

    SHANESTUD, go look at the cases that the ACLU has won across the centry. They’re no piggybackers.

  4. simon says

    May be they need another lawsuit to resolve this. Boies and Olson obviously want to make history and they naturally are unhappy about it.

  5. Samish says

    Didn’t ACLU and Lambda Legal file their cases first? Obviously that has nothing to do with anything, but it does seem to undercut the argument they are trying to piggyback.

    And while I think the argument that class action is unnecessary has some merit, was there not a concern that the Perry decision in Prop 8 could be interpreted to only apply to the named parties? And the only reason that concern has not popped up is because no one is trying to defend the stand that it only applies to them? I thought the ACLU and Lambda Legal here were trying to certify the class to avoid any fight over that question after the fact.

    I guess having people fight to get a quick decision and credit for it on behalf of gay marriage is a good problem to have.

  6. simon says

    Just like the DOMA case, there must be some kind of conspiracy going on here. Virginia governor is a Democrat. He will uphold the ban but won’t defend it. He will even appeal to push it up all the way to the Supreme Court.

  7. Samish says

    The governor will appeal what? He either defends the ban or he doesn’t. He isn’t otherwise a party in the case.

  8. Rob says

    Yes the lawyers smell glory here, which means there must be some back channel news that this case will go to the Supreme Court and end the issue forever. Since when do these rulings just affect the plaintiffs, though? The court knows that each individual gay couple can’t sue. Do we really need to force their hand and say that the ruling is for everyone? Is that worth sowing dissent in the ranks?

    There is a dizzying number of cases pending and I would like to think as a donor that they are all working together and getting along, and that none of their efforts are duplicative.

    Just bring us the victory and there will be enough glory to go around.