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Supreme dream team takes on Virginia’s same-sex marriage ban

The legal team that successfully took a challenge to California’s same-sex marriage ban to the U.S. Supreme Court has joined a challenge to Virginia’s constitutional amendment prohibiting same-sex marriage, with an eye to taking the issue of state law gay marriage bans before the high court.

On Monday, the American Foundation for Equal Rights, represented by a legal team that includes Theodore B. Olson of the Washington office of Gibson, Dunn & Crutcher LLP and David Boies of Boies, Schiller & Flexner LLP in Armonk, N.Y., joined as a plaintiff in Bostic v. Rainey in the U.S. District Court for the Eastern District of Virginia.

The case challenges the Virginia Marriage Amendment, which defines marriage in that state as only between a man and a woman and also prohibits the legal recognition of any arrangement between individuals of the same sex “that intends to approximate the design, qualities, significance, or effects of marriage,” including wills, powers of attorney and medical directives.

The attorneys said they chose to join this particular challenge for a number of reasons, including the fact that Virginia’s same-sex marriage ban is among the broadest in the nation.

There is also a personal connection.

“As a Virginian and a conservative, I believe these laws stand against the very principles of our nation’s founding,” said Olson, who along with Boies prevailed in a challenge to California’s voter-instituted Proposition 8 in Hollingsworth v. Perry. The decision in Perry did not reach the issue of the constitutionality of California’s same-sex marriage ban, so it has no direct effect on the validity of same-sex marriage in other states.

Olson and Boies said Bostic could give the justices the chance to address that issue head on.

“Virginia gave us the first marriage equality case [in Loving v. Virginia] — the one that most clearly established that the right to marry the person you love is a fundamental right of all Americans,” Boies said. “It’s fitting, then, that Virginia be the battleground for another great test of that principle.”

Bostic, which was filed on behalf of several Virginia same-sex couples by attorneys of the firm Shuttleworth, Ruloff, Swain,Haddad & Morecock PC in Virginia Beach, Va., challenges the constitutionality of the state amendment under the Due Process and Equal Protection Clauses, arguing that the law creates a category of “second-class citizens” by singling out gays and lesbians. It’s one of a host of challenges to state-law same-sex marriage bans in states including Arizona, Michigan, Missouri, North Carolina and South Carolina, and one of two separate challenges in Virginia.

On the same day that Olson and Boies joined the challenge in Bostic and the parties in that case filed cross-motions for summary judgment, Lambda Legal and the Virginia and national offices of the American Civil Liberties Union filed a summary judgment motion in the another case in the state’s Western District, Harris v. McDonnell.

“There are a lot of people who are interested in accomplishing the same goal,” Claire Guthrie Gastañaga, executive director of the ACLU of Virginia, said of the two parallel challenges.

Race to the top?

The flurry of activity in both Virginia cases on the same day fueled speculation that the parties may be competing for appellate attention, but the attorneys insist that there is no race to the 4th U.S. Circuit Court of Appeals or Supreme Court afoot.

Gastañaga said the filing in the Western District case was made because her group “would like to be able to move it as quickly as possible. We want fast action because we have plaintiffs who have children who need protection.”

Matthew D. McGill, a partner who works with Olson, said there was no litigation competition underway.

“I don’t believe there is a race going on here,” he said. The Virginia law “is antithetical to the basic propositions of equality and human dignity that are enshrined in our constitution. So I am not surprised that the plaintiffs in the Western District have moved to have the case expeditiously resolved.”

A spokesperson for Virginia Attorney General Kenneth T. Cuccinelli said that the state would defend the state amendment.

If either case reaches the appellate level, it may have plenty of company. Challenges to state same-sex marriage bans are proceeding in federal court in North and South Carolina, and similar challenges could soon reach the 6th, 8th and 9th Circuits, raising the likelihood of a split that could lead the high court to weigh in.

The North Carolina case includes an extra element: it challenges a state law that prohibits two unmarried individuals from jointly adopting a child.

Attorneys say the different litigation approaches and variances in state laws could also spur the Supreme Court to step in to set clear guidelines extending the principles of U.S. v. Windsor, in which the court struck down a portion of the federal Defense of Marriage Act.

“I read the Windsor decision as being largely an extension of the Lawrence [v. Texas] decision,” which struck down a state law banning certain sexual activity, said Chris Brook, Legal Director for the ACLU of North Carolina Legal Foundation. “It’s about human dignity. That seems to me to point to the need for a broader, 50-state solution rather than deciding” on a state-by-state basis.

Dana Nessel of the Detroit firm Nessel And Kessel Law, which represents plaintiffs challenging Michigan’s constitutional same-sex marriage ban, said there is no reason the various challenges could not reach the high court at once.

“There is no question in my mind that they can take more than one case,” Nessel said. “There are so many cases that have been filed in so many jurisdictions.”

There is added urgency, she said, because in the wake of Windsor a host of same-sex married couples who are eligible for federal benefits are facing legal hurdles if they live in states that don’t recognize their unions.

“It’s really a problem. People are getting married and filing joint federal tax returns, and then on the state tax returns the second question is: What did you declare on your federal tax return?” Nessel said. “People are getting married and moving and then discovering that they cannot get a divorce in the state in which they live. It keeps them from being able to come to a property settlement or a custody agreement for their children.”

Kimberly Atkins reported from Washington; Peter Vieth reported from Virginia.