Ruling on Virginia's Marriage Ban Expected 'Soon'

By Sunnivie Brydum

Originally published on Advocate.com February 04 2014 5:51 PM ET

The bipartisan team of attorneys who successfully took California's now-defunct Proposition 8 to the Supreme Court were back in federal district court today, this time taking aim at Virginia's constitutional ban on performing or recognizing same-sex marriages. 

A judge at the federal courthouse in Norfolk, Va., heard opening arguments today in Bostic v. Rainey, the challenge brought by two same-sex couples and the American Foundation for Equal Rights contending that Virginia's ban on marriage equality violates the Due Process and Equal Protection clauses of the 14th Amendment to the U.S. Constitution. 

After nearly two hours in court, Federal District Judge Arenda L. Wright Allen told counsel that she might issue a ruling on the case in the near future. "You’ll be hearing from me soon," she said, according to AFER's report on the day's proceedings. 

Before opening arguments commenced at 10 a.m., marriage equality supporters and opponents rallied outside the federal courthouse, chanting competing slogans. The pro-LGBT side held signs with messages like "Marry Who You Love" and "Liberty and Justice for All," while those opposed to marriage equality held signs that claimed "History Confirms Children Do Best With a Mom and Dad," and bemoaning the supposed demise of "traditional marriage." See photos from the antigay demonstration below. 

Inside the courtroom, attorneys for the plaintiffs presented polished arguments in favor of extending the freedom to marry to all Virginians. Conservative former solicitor general Ted Olson provided lead counsel for the plaintiffs, along with his one-time opponent in the 2000 Bush v. Gore case, progressive attorney David Boies. 

"The United States Supreme Court has stated fourteen times that the freedom to marry is one of the most fundamental rights — if not the most fundamental right — of all Americans," said lead co-counsel Boies in a statement Tuesday. "The denial of that fundamental freedom to marry the person you love and be treated with equal dignity and respect seriously harms gay and lesbian Americans and the children they are raising.”

The plaintiffs in the case are Tim Bostic, an English professor, and Tony London, a real estate agent, who live in Norfolk and have been together for 24 years, according to an AFER press release. They are joined by Richmond-based couple Carol Schall, an autism researcher, and Mary Townley, who also works with special needs youth. Schall and Townley have been together for nearly 30 years and have a 16-year-old daughter. They were legally married in California in 2008, but current Virginia law prohibits the state from recognizing the couple's marriage for tax, insurance, or benefit purposes. 

Last month, Virginia's newly inaugurated attorney general, Mark Herring, announced that he would not defend the state's marriage equality prohibition in court, and formally joined the plaintiffs in the suit aiming to overturn Virginia's law. Herring was present at today's hearings, according to AFER.

In response to Herring's announcement, conservative lawmakers introduced a bill in the state's House of Representatives that would allow lawmakers to hire attorneys to formally intervene in cases where elected officials declined to defend the state's laws. The Republican-controlled House passed the bill in a 65-32 vote this week, according to the Washington Post, though the bill faces a much tougher journey through the Democrat-controlled Senate. Even if such a bill passed the Senate, democratic governor Terry McAuliffe would be unlikely to sign it, as he has also declined to defend the marriage ban in court.

The arguments heard Tuesday were regarding just one of the two lawsuits currently seeking to establish marriage equality in Virginia through the federal courts. The second case, brought by two lesbian couples represented by the American Civil Liberties Union and Lambda Legal, does not yet have a scheduled hearing date, but was recently granted class-action status, meaning the plaintiffs can represent all similarly situated Virginians hoping to marry in their home state. 


Above: People protest against equal marriage outside the Walter E. Hoffman U.S. Courthouse in Norfolk, Va., as oral arguments in the case of Bostic v. Rainey proceed on February 4. 


Protesters outside the courthouse often cited religious opposition to same-sex marriage.


Chuck Ausin (L) challenges Robert Roman and others in favor of equal marriage as a group protests against marriage equality outside the Walter E. Hoffman U.S. Courthouse in Norfolk, Va.


Henry Guevava holds a large crucifix as people protest against equal marriage outside the federal courthouse in Norfolk.