A High-Profile Challenge of Va.'s Gay Marriage Ban

The high-profile legal tandem that brought down California's prohibition on same-sex marriage has joined a challenge of Virginia's constitutional ban on gay marriage.

David Boies and Theodore B. Olson announced Monday their participation in a challenge of the gay marriage ban, which also includes a denial of recognition of such unions sanctioned by other states. The case involves two gay men who say they were turned down July 1 when they tried to obtain a marriage license in Norfolk Circuit Court.

"This case is about state laws that violate personal freedoms, are unnecessary government intrusions, and cause serious harm to loving gay and lesbian couples," Olson said in a statement released ahead of a news conference in Washington. "As a Virginian and a conservative, I believe these laws stand against the very principles of our nation's founding."

Virginia voters approved the same-sex marriage ban 57 percent to 43 percent in 2006.

A spokesman for Attorney General Ken Cuccinelli said he would defend the amendment to the state Constitution.
About three dozen states do not allow same-sex marriage, and Virginia is one of 29 states that have put the ban in their constitutions.

Boies and Olson compared their challenge of the state's gay marriage ban to another landmark case: Virginia's ban on interracial marriages, which was struck down by the Supreme Court in 1967 in Loving v. Virginia.

"Virginia gave us the first marriage equality case - and the one that most clearly established that the right to marry the person you love is a fundamental right of all Americans," Boies said in a statement. "It's fitting, then, that Virginia be the battleground for another great test of that principal."

Boies' and Olson's American Foundation for Equal Rights successfully challenged California's Proposition 8, which was passed by voters to stop same-sex marriages.

In June, the U.S. Supreme Court struck down a provision of the federal Defense of Marriage Act that denied federal benefits to married gay couples. The justices also left intact a lower court ruling overturning California's gay marriage ban, but they did not rule on the constitutional question.

"The Supreme Court's decisions on the marriage issue this past summer make clear that the rulings have no effect on the Virginia Marriage Amendment or to any other Virginia law related to marriage," Cuccinelli spokesman Brian Gottstein wrote in an email to The Associated Press. "In this case where the Virginia Constitution is being challenged, this office's job is to defend the laws and the constitution of the commonwealth."

Boies and Olson, who were opposing counsel in the disputed 2000 presidential election, are joining a challenge of the constitutional amendment in the case of Timothy B. Bostic and Tony C. London.

Their lawsuit argues that Virginia's treatment of gays and lesbians is unequal and deprives them of benefits associated with marriage, including favorable tax treatment. The lawsuit also says the ban denied Bostic and London liberties that are guaranteed by the 14th Amendment.

It asks the court to bar enforcement of all laws that seek to deny gays and lesbians access to civil marriage and civil union.

The lawsuit names as defendants Cuccinelli and Gov. Bob McDonnell, among others. It was filed July 18 in U.S. District Court in Norfolk.

Bostic is professor of humanities at Old Dominion University, and London is a real estate agent and Navy veteran. They have been in a relationship since 1989, according to the lawsuit.

Joining in their lawsuit are Richmond residents Carol Schall and Mary Tonley, who have been together for 28 years and have a 15-year-old daughter. They obtained a marriage license from California in 2008, according to the lawsuit.

Separately, two couples from the Shenandoah Valley also filed a federal class-action lawsuit this summer challenging Virginia's same-sex marriage ban.

A poll conducted in July found that 50 percent of registered Virginia voters support same-sex marriage compared with 43 percent who don't.