Today, the legal team of David Boies and Theodore B. Olson announced their
participation in a challenge of the gay marriage ban in Virginia, which also
includes a denial of recognition of such unions sanctioned by other
states. The case involves two gay men and two lesbians who were refused a marriage license in Norfolk Circuit
Court. Virginia’s electorate approved the constitutional ban of same-sex marriage in 2006 by a margin of 57% to 43%.
The case, by the way is (2:13-cv-00395-AWA-LRL) Bostic et al v. McDonnell et al. The cause is violation of equal protection and due process. It was filed on July 18, 2013. Adding to the drama is the fact that the Commonwealth of Virginia was the defendant in the Loving case
I will be closely following the filings in this case but it appears that AFER via Olson and Boies is looking for the resolution that they wanted in the Proposition 8 case. The goal of AFER, formerly headed by HRC president, Chad Grffin, was always to effect national marriage equality.
Virginia AG Cuccinelli has indicated that he will defend the constitutional amendment in court. This will prevent a ruling on standing if, and when, the matter ends up at the Supreme Court (this is going to take some time).
Representing the Commonwealth of Virginia, thus far, has been Earle Duncan Getchell Jr., the solicitor general. Getchell has BA from Emory and his JD from Duke University. Virginia’s representation must change. Keep in mind that the adversary in the Prop 8 case was the very prominent Charles Cooper.
The case is before District Court Judge Arenda Lauretta Wright. She was nominated by President Obama in December, 2010 and confirmed (96-0) by the Senate in May of 2011. Olson and Boies (who filed motions to appear today) will be looking for a result similar to Judge Walker’s ruling in California.
Depending upon the progress of the case it, or an appeal, may be affected by whether or not Terry McAuliffe defeats Cuccinelli for governor this fall. McAuliffe currently has an eight point lead in the polls. Due to the fate of Prop 8 based on standing it is unlikely that any outside groups would step in to substitute for the Commonwealth.
The many variables (now and in the future) make this all very interesting.