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Ruling 'Expected Soon' in Virginia Challenge to Gay Marriage Ban Following Hearing Today: AUDIO

(image via AFER - WAVY/Alba Bragoli)

A federal judge heard arguments in Norfolk on Thursday in one of two challenges to Virginia's ban on gay marriage. The case is Bostic v. Rainey, and the plaintiffs were represented by (Prop 8 lawyers) Ted Olson and David Boies and the American Foundation for Equal Rights.

AFER reports:

District Federal Court Judge Arenda L. Wright Allen could issue a ruling quickly. “You’ll be hearing from me soon,” she said at the conclusion of the nearly two-hour hearing. While we don’t know when—or how—Judge Wright Allen will decide the case, we remain optimistic that our arguments for freedom and equality will once again prevail.

The Washington Post reports:

Virginia for the first time advanced its new legal position that a 2006 referendum approved by voters to define marriage as only between a man and a woman violates the U.S. Constitution. It is the next question for courts to decide as the nation’s view of same-sex marriage undergoes a radical transformation: whether states, which traditionally define marriage, may withhold it from same-sex couples.

Virginia Solicitor General Stuart Raphael said new Attorney General Mark R. Herring (D) had made a “courageous” decision to say that the state could not defend the ban. He compared it to previous cases in which the commonwealth has defended segregation, a ban on interracial marriage and keeping women from attending VMI—all decisions overturned by the Supreme Court.

“We are not going to make the mistakes our predecessors made,” Raphael told Wright Allen.

Listen to the press call from AFER following the hearing with Boies, Olson, the plaintiffs and Virginia AG Mark Herring, AFTER THE JUMP...

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Federal Judge to Hear Challenge to Virginia Gay Marriage Ban on Thursday

A federal judge will hear arguments on Thursday in one of two challenges to Virginia's ban on gay marriage. The case is Bostic v. Rainey, and the plaintiffs are represented by (Prop 8 lawyers) Ted Olson and David Boies and the American Foundation for Equal Rights.

Arenda_allenThere had been some discussion that the judge might issue a ruling without hearing further arguments after Virginia Attorney General Mark Herring last week declared the state's ban on gay marriage unconstitutional and said he would not defend it in court. Following Herring's statement, District Judge Arenda Allen (pictured) questioned the need for further arguments.

The Daily Press reports:

Stuart A. Raphael, the state's solicitor general who serves under Herring, said that while the "ongoing, harmful denial of civil liberties to Virginia's same-sex couples" should be resolved as quickly as possible, the hearing should go forward.

"The decision here will be a landmark ruling in Virginia on one of the most important civil rights issues of our time," Raphael wrote. "The gravity of the matter and the stakes involved make it reasonable to allow the parties to supplement their written submissions … with brief oral argument."

Doing so, Raphael wrote, "comports with the dignity and seriousness of the issues and will obviate any concern that the losing parties were not given a fair opportunity to be heard."

Aside from Herring's office, other parties in the case did not take a strong stand on whether oral arguments should take place. Late Monday afternoon, Allen said the hearing would indeed go forward.

The arguments begin at 9 am in Norfolk.

Also on Monday, Allen said she would not make her final decision at the hearing in U.S. District Court in Norfolk, but would take various pending motions "under further advisement."

Hearing Scheduled in Virginia Marriage Equality Case

One of the two federal lawsuits challenging Virginia’s same-sex marriage ban is set to have its first court hearing take place in Norfolk on January 30. The Washington Blade reports: 

Tony london, tim bosticJudge Arenda L. Wright Allen of the U.S. District Court for the Eastern District of Virginia will hold the hearing in the lawsuit that Tim Bostic and Tony London [pictured] of Norfolk filed in July. Carol Schall and Mary Townley of Richmond are also plaintiffs in the case the American Foundation for Equal Rights joined in September.

“This case is about liberty,” David Boies said during a Sept. 30 press conference in D.C. during which AFER formally announced he and Ted Olson, who argued against California’ s Proposition before the U.S. Supreme Court, had joined the case. “It’s about the pursuit of happiness. It’s about the inalienable right of every individual to marry the person who they love.”

It remains to be seen if newly elected Virginia Governor Terry McAuliffe and Attorney General Mark Herring will defend the state’s ban on same-sex marriage in court. Both support nuptials for gays and lesbians. Additionally, McAuliffe’s first official act as governor after being sworn in this weekend was to sign an executive order banning discrimination against LGBT state employees. 

The other marriage equality lawsuit, filed by the American Civil Liberties Union, Lambda Legal, and the ACLU of Virginia back in August, received a hearing in federal court back in October. Our own legal expert Ari Ezra Waldman wrote up a great breakdown of both cases a few months back that you can check out HERE

Two Marriage Equality Cases in Virginia: What's Going On?



There are two federal marriage equality cases going on in Virginia. They look a lot alike: Both revolve around same-sex Virginia couples who want to marry; both challenge Virginia's explicit constitutional ban on such unions; both address the lack of recognition of valid out-of-state marriages of same-sex couples; both want to reach the Supreme Court and hope to decide, once and for all, that bans on marriage freedom are unconstitutional.

The cases differ in two critical aspects: Different courts and different lawyers.

Olson_boiesIn one case, the American Foundation of Equal Rights (AFER) and Ted Olson and David Boies have taken the lead even though it was originally filed by a local law firm. In the other case, Lambda Legal and the American Civil Liberties Union (ACLU) have picked up the baton of marriage equality.    

Some say it's a race. Who can craft the best case. Who can win first. Who can get to the Supreme Court first. There has been some chatter among the LGBT press in this vein.

I do not dive so quickly toward paranoia. No one can deny that there's a certain competitive storm swirling around these neighboring lawsuits. After all, AFER got to the Supreme Court first, in Perry v. Brown, but the ACLU actually won an important victory in Windsor, the DOMA case. Meanwhile, Lambda was filing and winning marriage equality cases throughout the country and, of course, won us the right to be who we are ten years ago in Lawrence v. Texas. 

But there is nothing inherently wrong with a multipronged attack on marriage discrimination. In fact, we should see this as a good sign! We are, ultimately, giving the federal courts multiple ways to eradicate an odious law. Let's just make sure these multiple ways forward do not devolve into multiple battles backward.


Continue reading "Two Marriage Equality Cases in Virginia: What's Going On?" »

Ted Olson and David Boies Join Virginia Gay Marriage Case, Eyeing SCOTUS Once Again

Bostic v. Rainey, a Virginia case challenging the state's ban on same-sex marriage which is expected to go to the Supreme Court is about to go very high profile, the Washington Post reports:

Olson_boiesThe American Foundation for Equal Rights — with its attention-getting political odd couple of conservative Republican lawyer Theodore Olson and liberal Democrat David Boies — will announce Monday it is joining a lawsuit against what the lawyers called Virginia’s “draconian” laws prohibiting same-sex marriages, the recognition of such marriages performed where they are legal, and civil unions.

Olson and Boies are hoping the case will inspire the justices to find that same-sex marriage is a Constitutional right.

The paper adds:

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 is an “attractive target,” said Olson, who lives in the state, because its rejection of same-sex marriage and civil unions is so complete.

Virginia's voters amended the state Constitution in 2006 to ban same-sex marriages and civil unions, and forbid recognition of unions performed outside of the state.

BosticTony London and Timothy Bostic are the main plaintiffs in the case, which they filed back in July.

Wrote the Virginian Pilot at the time:

"They thought about getting married in another state, but decided against it," said Robert Ruloff, an attorney for London, a Norfolk real estate agent, and Bostic, an Old Dominion University assistant professor of English. "They are Virginians and they want to be married in Virginia."

The lawsuit is the first such legal challenge filed in Virginia. It came one week after the American Civil Liberties Union of Virginia announced plans to file its own lawsuit, and about three weeks after the U.S. Supreme Court undercut two laws that stood as barriers to gay marriage.

Chris Freund, a spokesman for the Family Foundation, a conservative nonprofit based in Richmond, said he was not surprised by the lawsuit. He said the plaintiffs are trying to circumvent "the will of the people."

HBO Producing Documentary on Battle to Overturn Proposition 8

HBO is working on a documentary based on the battle to overturn Proposition 8 that presumably will focus on David Boies, Ted Olson, and the team that took the case to the Supreme Court, the NYT reports:

Olson-boiesHBO said that two directors, Ben Cotner and Ryan White, have for years had exclusive behind-the-scenes access to the legal team that argued the recent Supreme Court case over Proposition 8, a California ballot initiative that banned gay marriage in the state. The Supreme Court late last month declined to rule on the case, effectively ending the ban.

The still-untitled documentary will be completed by the end of the year and make its debut on HBO sometime next year. Michael Lombardo, HBO’s programming president, in a statement called the movie “the story of a modern-day American revolution” and said it was intended to be “the film of record on this landmark case.”

Adds Deadline:

Cotner is currently SVP of acquisitions at Open Road Films. White’s films include Pelada and Good Ol’ Freda, which will be released in September. The deal was negotiated with HBO on behalf of the filmmakers by Josh Braun of Submarine Entertainment and Victoria Cook of Frankfurt Kurnit Klein & Selz.


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