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.
I'm not even sure the plaintiffs in this case can successfully establish standing, and the hearings to determine such will almost certainly result in the case being heard after the elections.
ReplyDeleteBostic and London have only suffered harm insofar as they have created that harm inside their own minds. I can claim that I am personally aggrieved that I cannot marry my beloved dog, and that not being able to claim my beloved dog as a dependent on my tax return otherwise increases my state and federal taxes but that doesn't give me standing to sue the Governor.
Standing will be an issue, and perhaps the controlling issue at the initial motion to dismiss.
DeleteI do not expect that it is likely that the Marshall-Newman amendment will be struck down by the election, rather the initial motion to dismiss will be argued in October thereby bringing the issue front and center in the middle of election season.
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