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.