Gay Marriage lawsuit filed in Virginia; Cuccinelli will have to defend Virginia Constitution in the middle of election season

As I pointed out on July 9, Virginia, as one of only two states with gubernatorial elections this year, is going to be the epicenter of a legal challenge to state constitutional bans on gay marriage.  As the ACLU of Virginia continues to get its house in order to file a challenge and put Republican gubernatorial nominee and current Attorney General Ken Cuccinelli on the defensive, one couple has decided they no longer wish to wait. 

Timothy Bostic and Tony London, a gay couple from the City of Norfolk filed a Complaint in the U.S. District Court for the Eastern District of Virginia , Norfolk division, to have Virginia's state constitutional ban on gay marriage declared invalid due to due process and equal protection violations under the 14th Amendment.  No doubt, the plaintiff's were emboldened by the recent Supreme Court decision in U.S. v. Windsor.  The Complaint was filed against three individuals in their official capacities: Governor Robert McDonnell, Attorney General Ken Cuccinelli, and Clerk of the Norfolk City Circuit Court, George E. Schaefer, III (the clerk is responsible for issuing the marriage license).

The couple wants to be married IN VIRGINIA

The couple has been together since 1989.  London is a navy veteran and a real estate agent.  Bostic is a college professor at Old Dominion University.  They sought a marriage license at the City of Norfolk Circuit Court a mere week after the U.S. v. Windsor decision and were turned down.  They apparently have no desire to go and be married under another state's laws.  The result is that there are no issues involving interstate law, and the Defense of Marriage Act [DOMA] is irrelevant to the court's determination.  The couple expressed through counsel that they "are Virginians and they want to be married in Virginia."

Where is the ACLU?

On July 9, 2013 the ACLU of Virginia indicated it was going to file a lawsuit challenging the Marshall-Newman amendment to the Virginia Constitution restricting marriage to opposite gender unions.  As I pointed out, the timing of such a lawsuit would be disadvantageous to the sitting Attorney General.  Nonetheless, the ACLU of Virginia has been seemingly silent since then, and have not filed any sort of challenge.  Presumably, the plaintiffs in the ACLU case will have been married in another state, and hence a DOMA challenge will be brought.  Nonetheless, time is quickly passing for such a case to have any effect on the Virginia Governor's race. 

Bostic v. McDonnell

The way the Complaint is captioned, Bostic v. McDonnell may very well be the seminal case in Virginia allowing for same sex marriage.  It is also the most likely matter to have any serious affect on the gubernatorial campaign.  Interestingly enough, if Cuccinelli loses in the fall, the Democrat Terry McAuliffe will be substituted for the main defendant, and this major precedent would then be coined Bostic v. McAuliffe.  Plaintiffs hired the firm of Shuttleworth, Ruloff, Swain, Haddad & Moorecock, P.C. in Virginia Beach.  The firm appears to focus on personal injury and criminal representation.

Battleground Virginia: Gay Marriage to become primary topic in Virginia's gubernatorial election

The ACLU is about to ensure that gay marriage becomes a major issue in Virginia's 2013 election.

Today, the ACLU of Virginia announced that it would be challenging Virginia's ban on Gay marriage in federal court.  This is part of a three pronged effort in Pennsylvania, North Carolina, and Virginia to challenge restrictions on gay marriage.  Virginia's ban, known as the Marshall-Newman amendment was passed in 2006 by a 57-43% margin. 

The Supreme Court's ruling

On June 26, 2013 the Supreme Court issued two rulings regarding gay marriage.  The California Proposition 8 case was dismissed for lack of standing, and was sent back to California for enforcement of the District Court ruling.  More importantly, the Defense of Marriage Act decision struck down a key component of DOMA in United States v. Windsor. (My curt analysis of U.S. v. Windsor can be found in my previous article).

These two decisions represented big wins for gay marriage proponents.  As of this morning, I expected these victories to have a severe negative affect on liberal turnout in November.  Hence, this would benefit Ken Cuccinelli.

What this means for Ken Cuccinelli

This lawsuit will have a huge negative effect for Ken Cuccinelli.

Ken Cuccinelli was one of the patrons of the Marshall-Newman amendment and one of its strongest proponents.  Ken Cuccinelli is also the sitting Attorney General for the Commonwealth of Virginia as well as the current Republican candidate for Virginia Governor.  In modern history, sitting Attorneys' General in Virginia resign from office during the election year in order to run for Governor.  Ken Cuccinelli decided to forego that trend, which has caused some complications.  Specifically the Attorney General's office has felt the need to withdraw from two different matters involving (at least tangentially) a company called Star Scientific. 

Now, the Attorney General's office will be in the thick of arguing in support of the Marshall-Newman amendment.  Whether Cuccinelli wants to, or not, he will be the face of the opposition to gay marriage.  Many voters pay little attention to political campaigns until the key campaign season between Labor day and election day. The ACLU lawsuit will probably be prepared for summary judgment or a motion to dismiss to be argued in court in late September or early October.  Any attempt by Cuccinelli to avoid discussion of social issues will be easily brought back to the issue du jour in Virginia, which will be gay marriage. 

Terry McAuliffe does not need to focus on the issue of gay marriage.  He simply needs to state his support (which he has) and allow debate moderators, and or the media to force Cuccinelli to repeatedly discuss his dogged defense of the Marshall-Newman amendment. 

This all comes down to turnout

Virginia has off year statewide elections.  The country focuses on Virginia and New Jersey each year after a presidential election.  New Jersey's race is widely considered to be uninteresting, leaving Virginia at the forefront of national news.

Cuccinelli's base is motivated.  No amount of criticism is going to decrease the turnout of the base. 

McAuliffe's base is unmotivated.  Although many liberals are motivated by *dislike* of Cuccinelli, few actually care for McAuliffe.  This enthusiasm gap is cured if McAuliffe has this social issue to run on.

Independents and right/left leaning voters, in my opinion, either support gay marriage, just do not care, or wish the government would just get out of the business altogether.  All three of these demographics will be turned off by the Cuccinelli's media manufactured focus on gay marriage, even if they opposed gay marriage in 2006.  This is because they would rather the governor focus on the economy, and jobs.

And then there is money.  With no nationwide initiative in the next six months, unlimited campaign contributions in Virginia, and an "anti-gay" crusader on the statewide ballot, gay marriage supporters can voice their concerns with their money.

The bottom line

Make no mistake, Ken Cuccinelli is not afraid to stand up for what he believes in, but winning statewide office in Virginia requires him to focus on something more than a divisive social issue. 

The nature and timing of this lawsuit may very well be the reason McAuliffe wins in November.

U.S. v. Windsor in a nutshell

Below is a curt summary of my thoughts in reading the major decision striking down part of DOMA

1. If you are s/s married in a state that recognizes you as s/s married, the federal government must treat you as married.

2. If you are s/s married, but living in a state that does not recognize s/s marriage, you must sue again to even find out if the federal governmentt will treat you as married.

3. DOMA's prohibition on forcing states to recognize out of state s/s marriage is intact, and left for another day (in my opinion this has always been unconstitutional).

4. The majority opinion hinges on the belief that DOMA was enacted for nefarious reasons. Ed. Note: this is not a valid standard for declaring something unconstitutional. This could have been easily solved a number of ways.

5. The majority opinion is whiny.

6. Scalia's dissent is full of histrionics claiming the majority referred to opponents of s/s marriage as "hateful" and motivated by "malice." These words DO NOT exist in the majority opinion.

7. I predict this will go down as one of the most poorly reasoned and worded opinions in Supreme Court history.