Virginia, West Virginia newest legal battlegrounds on marriage


The legal team that dismantled the anti-gay Proposition 8 amendment in California has joined in the lawsuit to repeal a ban against same-sex marriage in Virginia.

Meanwhile, in West Virginia, Lambda Legal on Oct. 1 filed a case to overturn that state’s anti-gay marriage measure.

In Virginia, the American Foundation for Equal Rights has joined a federal constitutional challenge to Virginia’s ban on marriage equality, Bostic v. Rainey.

The case contends that the Virginia Marriage Amendment and other Virginia laws that prohibit gay and lesbian couples from marrying are unconstitutional, restrict personal freedom and cause serious harm to loving and committed couples and their families, according to a news release from AFER.

The case was filed in the U.S. District Court for the Eastern District of Virginia and specifically alleges that the state amendment and other Virginia laws violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment of the U.S. Constitution. The targeted laws single out gays and lesbians for a disfavored legal status and create a category of “second-class citizens.”

AFER attorney Theodore B. Olson said, “This case is about state laws that violate personal freedoms, are unnecessary government intrusions, and cause serious harm to loving gay and lesbian couples. As a Virginian and a conservative, I believe these laws stand against the very principles of our nation’s founding. Our plaintiffs have been together for a combined 52 years, yet Virginia will not allow their relationship to be recognized in any way.  Virginia’s laws violate core personal freedoms, they are humiliating and demeaning and they harm loving families.”

AFER attorney David Boies added, “Virginia gave us the first marriage equality case ­– and the one that most clearly established that the right to marry the person you love is a fundamental right of all Americans.  It’s fitting, then, that Virginia be the battleground for another great test of that principle. Gay and lesbian couples are guaranteed the same marriage rights as straight couples, and the Commonwealth of Virginia cannot impinge on that fundamental right.  Any alternative is separate and unequal and relegates gays and lesbians, and the children they are raising, to second class status.”

Virginia amended its constitution to ban same-sex marriage in November 2006 by defining marriage as the union of a man and a woman.

The plaintiffs are Tim Bostic, an English professor, and Tony London, a real estate agent, who live in Norfolk and have been together for 24 years. They are joined by Carol Schall, an autism researcher, and Mary Townley, who also works with special needs youth, from Richmond.  Carol and Mary have been together for 28 years and have a sixteen-year-old daughter. They obtained a marriage license in California in 2008.

The defendants in the suit are Virginia Registrar of Vital Records Janet M. Rainey and Norfolk Circuit Court Clerk George E. Schaefer.

In West Virginia, Lambda Legal, a national LGBT legal defense fund, filed a federal lawsuit in the U.S. District Court for the Southern District of West Virginia on behalf of three same-sex couples seeking the freedom to marry, and also the child of one of the couples.

The case was filed on behalf of Casie McGee and Sarah Adkins and Justin Murdock and Will Glavaris, all of Huntington, and Nancy Michael and Jane Fenton and their son Drew, of St. Albans, according to a news release.

“West Virginia is home for us. Our family is here, our jobs are here, and our community here is a great support for us,” said Michael, a lifelong West Virginian. “Jane and I have been together for 16 years. We live and work together, and we are raising our son, Drew, together. We have done everything we can to protect and take responsibility for our family but we worry all the time that it isn’t enough. We need the protection that marriage affords.”

Michael, 45, and Fenton, 43, have been together for 16 years and their son, Drew, is 6. Of the other plaintiffs, McGee, 30, and Adkins 32, have been together for more than three years, and Murdock, 32, and Glavaris, 31, have been together for more than two years.

In the lawsuit, Lambda Legal, joined by pro bono co-counsel from Tinney Law Firm and Jenner & Block, argues that West Virginia’s marriage ban unfairly discriminates against same-sex couples and their children and sends a purposeful message that lesbians, gays and their children are second-class citizens who are undeserving of the legal sanction, respect, protections and support that different-sex couples and their families are able to enjoy through marriage.