The
first Virginia case after the landmark U.S.
v. Windsor ruling on gay marriage has undergone some recent changes
that will truly push the matter to the forefront immediately before November's
elections.
A New Complaint
Bostic & London have filed an Amended
Complaint adding two additional plaintiffs, Carol Schall and Mary Townley. Taking a cue from the ACLU case, they added Janet
Rainey, the State Registrar of Vital Records, as a Defendant.
What happened to
Cuccinelli?
Gov. McDonnell and AG Cuccinelli have been voluntarily
dismissed as Defendants. In these types
of cases, you have to figure out the correct state actors to sue. It is not always obvious which actors a court
expects to be listed as a defendant.
This probably looks like a good thing for Cuccinelli as he is no longer
listed as a defendant, it may appear to have less effect on him before the
election. But, the Commonwealth has
intervened in the case as an "interested party." This means that AG Cuccinelli's office will
still be submitting briefs and taking stances before the election. Cuccinelli will have to defend these actions.
The ACLU case does
not appear to be moving to the forefront
The ACLU of Virginia finally got around to filing a class
action lawsuit challenging Virginia's
ban on same-sex marriage. The opposing
parties have filed motions to dismiss, and the ACLU has filed a motion to certify
all members as a class. This lawsuit was
filed in the U.S. District Court for the Western District of Virginia which is reasonably
fast, but not known for the haste in which the Eastern District proceeds.
None of the motions have been scheduled for a hearing, and
given the tremendous effort it takes to obtain a class action certification,
any public fight in this case in the next two months will likely center on this
boring procedural step, which will have substantially less political effect on
the Governor's race.
With all these delays
will this case still have any effect on the election?
This is where the Bostic case gets interesting. The parties submitted
an agreed order setting response schedules for the amended complaint and a
briefing schedule for summary judgment motions.
Summary judgment is the means by which this case will be adjudicated in
total. It is the equivalent of a trial
in this matter.
Here is the schedule:
Initial summary judgment motions from all parties are due
September 30, 2013.
Response briefs are due October 24, 2013.
Final reply briefs are due October 31, 2013.
The election is November 5, 2013
AG Cuccinelli's office, on behalf of the Commonwealth will
have to file major briefs 36 days, 12 days, and 5 days before the gubernatorial
election. October is the most critical
time of the election season. Cuccinelli
will be held accountable for every word in these briefs.
This makes it easy to stand by my
initial prediction that this will have a substantial negative impact on
Cuccinelli.
