Prop. 8 Legal Team Sets Sights on Va. Marriage Ban

Ted Olson and David Boies, the bipartisan legal team that successfully argued against California's Proposition 8 at the Supreme Court, have signed on to a federal challenge to Virginia's ban on marriage equality.

BY Sunnivie Brydum

September 30 2013 12:48 PM ET

The so-called odd couple — a conservative lawyer who represented George W. Bush and his liberal opponent who represented Al Gore in the contested 2000 election — who helped strike down California's Proposition 8 are now taking their legal prowess to Virginia to fight that state's prohibition on marriage equality. 

Ted Olson and David Boies, the bipartisan legal team who successfully argued Hollingsworth v. Perry, the Prop. 8 case, at the Supreme Court, have signed on to a pending federal case that aims to strike down Virginia's constitutional amendment banning same-sex marriage, the American Foundation for Equal Rights announced today. 

The Virginia case, Bostic v. Rainey, was filed in the U.S. District Court for Virginia's Eastern District on behalf of two couples who contend that the Virginia Marriage Amendment, which prohibits gay and lesbian couples in Virginia from marrying, violates the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. One of the couples, Timothy Bostic and Tony London, were denied a marriage license in July, while the secondary plaintiffs, Carol Schall and Mary Townley, married in California in 2008, have a 15-year-old daughter, and are asking Virginia to legally recognize their relationship. 

The Equal Protection argument is, in part, the same logic Olson and Boies successfully advanced in the Prop. 8 case, where California voters rescinded the gay and lesbian couples' right to marry by ballot initiative in 2008. In June, the U.S. Supreme Court effectively repealed Prop. 8 on a legal technicality, deciding that the official ballot proponents had no legal standing to defend the law after two sets of California governors and attorneys general declined to do so. When AFER enlisted Boies and Olson to fight California's marriage equality ban in 2009, no other mainstream LGBT organization was willing to mount the legal challenge. 

But with two landmark rulings in favor of marriage equality at the Supreme Court this summer — both the Prop. 8 case and Windsor v. U.S., which struck down a key section of the so-called Defense of Marriage Act — and 13 states and the District of Columbia with legal marriage equality in place, the winds have shifted toward equality. 

Olson, who lives in Virginia, said his state is an "attractive target" for a federal challenge that he hopes will establish a federal constitutional right to marry. 

In their arguments against Prop. 8, Olson and Boies often cited the 1967 Supreme Court case Loving v. Virginia, which struck down bans on interracial marriage as unconstitutional. Because Virginia's marriage amendment not only bans same-sex marriage in the state but also the recognition of any legal same-sex marriages from other states, Olson said Virginia provides a good example to highlight the importance of establishing gay and lesbian Americans' to marry on a national basis. 

"The more unfairly people are being treated, the more obvious it is that it's unconstitutional," Olson told the The Washington Post

The American Civil Liberties Union and Lambda Legal also filed a request for swift judgment in another federal case challenging Virginia's ban on marriage equality — this one filed in the U.S. District Court for Western Virginia, on behalf of two lesbian couples.

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