Bostic, et al v. Robert McDonnell, et - A Challenge to Virginia's Gay Marriage Ban

Last week I wrote about a challenge to Virginia's gay marriage ban that was filed in the U. S. District Court for the Eastern District of Virginia - Norfolk Division, which is sometimes known as the "rocket docket" because the Court is known for moving lawsuits along and not tolerating dilatory games by defense counsel.  Today, I was able to secure a copy of the complaint via my law firm PACER account.   The basic players in the case are the plaintiffs, Timothy B. Bostic, a Professor at Old Dominion University and his partner, Tony C. London, a successful Norfolk area realtor.  They have been a couple for over 25 years.  The defendants are Defendants are Robert F. McDonnell, the Governor of the Commonwealth of Virginia, anti-gay zealot, Kenneth T. Cuccinelli, the Attorney General of the Commonwealth of Virginia, and George E. Schaefer, III, the Clerk of the CircuitCourt for the City of Norfolk, whose office refused to issue a marriage license to the plaintiffs.

In the wake of the ruling in United States v. Windsor on June 26, 2013, the complaint not surprisingly alleges that Virginia's anti-gay marriage (i) ban deprives the plaintiffs of due process and equal protection under the United States Constitution - which trumps the Virginia Constitution even though Ken Cuccinelli doesn't get that basic fact - and (ii) was motivated by discriminatory intent and anti-gay animus.  The suit also seeks relief against the defendants under 42 U.S.C. § 1983.   It is not without irony that the Complaint leads off with a reference to Loving v. Virginia in which Virginia was taken to the woodshed and whipped for its anti-miscegenation law that did to mixed race couples what the Marshall-Newman Amendment sought to do to gay couples.  Here are excerpts from the complaint:

More than 30 years ago, the Supreme Court of the United States recognized that "[m]arriage is one of the 'civil rights of man,' fundamental to our very existence and survival." Loving v. Virginia, 388 U.S. 1,12 (1967). But today, as a result of both state statute and the state constitution, the Commonwealth of Virginia denies its gay and lesbian residents access to marriage. Article I, §15-Aof Virginia's Constitution provides that "only a union between one and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions." Va. Const., Art. I, § 15-A. 

Similarly, Va. Code § 20-45.2 states that a "marriage between persons of the same sex is prohibited" in the Commonwealth of Virginia. This code section also states that "[a]ny marriage entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created by such marriage shall be void and unenforceable." Virginia law also prohibits civil unions among same-sex individuals. Va. Code § 20-45.3. 

This unequal treatment of gays and lesbians denies them the basic liberties and equal protection under the law that are guaranteed by the Fourteenth Amendment to the United States Constitution.

This action, brought pursuant to 42 U.S.C. § 1983, seeks (1) a declaration that Virginia Code §§ 20-45.2 and 20-45.3 and Article I, § 15-A of the Virginia Constitution provisions that expressly deny gay and lesbian individuals the opportunity to marry civilly and enter into the same officially sanctioned family relationship with their loved ones as heterosexual individuals— are unconstitutional under the Due Process and Equal Protection clauses of the Fourteenth Amendment to the United States Constitution; and (2) a preliminary and permanent injunction preventing Defendants from enforcing these provision against Plaintiffs.

Gay and lesbian individuals have faced a long and painful history of societal and government-sponsored discrimination in this country. Although their sexual orientation bears no relation to their ability to contribute to society, gays and lesbians have been singled out for discriminatory treatment. They have faced unconstitutional criminal penalties for private sexual conduct between consenting adults, harassment, hate crimes, and discrimination in employment and many other areas. They have even been the subject of laws stripping them of rights afforded to all other citizens.

Virginia law, unlike the law in many other states, even prohibits gay and lesbian couples from entering into civil unions. Virginia law also fails to honor the laws of thirteen other states and the District of Columbia, which allow for same-sex marriage, by providing that such marriages are"void in all respects" and by stipulating that any contractual rights from such valid marriages "are void and unenforceable" in the Commonwealth of Virginia.  The inability to marry denies gay and lesbian individuals and their children the personal and public affirmation that accompanies marriage. The inability to marry also deprives same-sex couples of numerous benefits associated with marriage . . . 

The avowed purpose ofthis statutory and constitutional regime is "to impose a disadvantage, a separate status, and so a stigma upon", those who seek to enter into same-sex marriage in Virginia. See United States v. Windsor, 570 U.S. (2013)(slip opinion at 21).

As a result of both state statute and state constitutional law, Plaintiffs are barred from marrying the individual they wish to marry, cannot enter into the separate-but-unequal bond of a civil union, and cannot marry in another state and have Virginia recognize the benefits of such unions.

The disadvantage these laws impose upon gays and lesbians is the result of  disapproval or animus against a politically unpopular group. Accordingly, these laws violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by casting gays and lesbians into disfavored legal status and categorizing them as "second-class citizens."

The full complaint can be found on a companion post at The Bilerico Project.   I would encourage readers to review the full Complaint.  At trial, the plaintiffs' counsel should be able to introduce a great deal of evidence on the anti-gay animus that motivated Virginia's gay marriage bans, including statements by Ken Cuccinelli, Del. Bob Marshall (from whom the amendment took its name) and others.

This post would not be complete without acknowledging some of the blow back I have received from previous posts about the case.  It seems that some of what many of us living in "red states" view as the self-anointed "gay elite" are displeased that the plaintiffs proceeded to file their lawsuit rather than wait for permission, if you will, from Lambda Legal, the ACLU and others.  These the "gay elites" primarily sit safely in gay friendly jurisdictions like New York and Washington, D.C., and lecture those faced with no rights or legal protections, give them a pat on the head and then tell Virginians and others "be patient, we know best."   One must not forget that when the Hollingsworth v. Perry suit was filed, these same elites argued against the case being brought.  Ted Olsen and David Boies proved them wrong.

As for the legal team representing the plaintiffs, they are top notch litigators and are from an "A(v) rated law firm.   The senior partner in the firm, Thomas Shuttleworth, is admitted to practice before the U. S. Supreme Court and has been ranked among the best lawyers in America.  A number of the more senior partners in the firm were former law partners with me years ago and I can say from first hand experience (i) they are superb trial attorneys, and (ii) they play to win.    There is never any guaranteed result in litigation, but the plaintiffs have chosen very competent attorneys.  If Lambda Legal and others are pissed off, they should have been ready to file in Virginia once the ruling in Windsor was handed down.