Friday, September 6, 2013

Gay Marriage case on course to affect Virginia's Governor's race

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.

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