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.

Virginia citizens’ voting records about to become more public

Privacy advocates should lament our loss of privacy in voting history, while constitutionalists should celebrate the vindication of the first and fourteenth amendments.  A recent case concluded in the Circuit Court for the City of Richmond, Know Campaign v. Rodrigues, is a cause for celebration of the constitution and lamentation of our privacy rights.  

2009: Enter the Know Campaign

In 2009 a formerly unknown organization, called the Know Campaign, prepared to mail out personal voting history of friends and neighbors in an effort to encourage people to vote.   Coverage here.

A major problem with their plan is that the information they sought to disclose could not have been obtained directly from the State Board of Elections as the Know Campaign was not allowed direct access to this information.  The Know Campaign appears to have taken the safer route in 2009 and decided not to engage in direct mail campaigning. 

Virginia Distributes Your Voting History (in part) to Recipients Outside the Government

So where does this information come from?  Voting history, (whether you voted, but not who you voted for) is collected and maintained in databases held by the state board of elections.  This information is then made available (for four years) to a select group of individuals and organizations so they can affect the political process.  This select group able to obtain theses records under Va. Code § 24.2-406 is limited to “candidates, elected officials, or political party chairmen and to no one else.”

The information included in these lists consists of your name, the general elections and publicly run party primaries you participated in, and your address.  This information is used by those three special categories of candidates, elected officials, and party chairman to identify likely voters, and make rough identifications of party affiliation based on primary vote participation.

2010: The General Assembly Acts (or rather fails to act), and the Know Campaign Identifies a Legal Strategy

According to the Virginia Pilot, the General Assembly tried to change Va. Code § 24.2-406 during the 2010 session and failed to do so.  In the interim , the Know Campaign appears to have filed and nonsuited case No. CL09005389 in the Circuit Court for the City of Richmond (an explanation of what a nonsuit is and how it works (or does not work) requires far more than a two sentence explanation and will be reserved for another time). 

The Know Campaign Executes its Legal Strategy