After their partly successful challenge of a California law banning same-sex marriage, David Boies and Theodore Olson are now representing the plaintiffs challenging an identical law in the state of Virginia. This legal dream team, one Democrat and one Republican, have a steeper hill to climb this time.
Virginia’s ban on gay marriages is an unconstitutional wall built around same-sex couples and must be struck down, said Ted Olson, a former solicitor general for President George W. Bush who helped trigger a national wave of lawsuits challenging similar laws.
“Virginia erects a wall around its gay and lesbian citizens,” Olson told U.S. District Judge Arenda L. Wright Allen today in Norfolk, Virginia. “What the Commonwealth of Virginia is doing is taking away a fundamental right. It’s the right of individuals, not the right of state, that’s what’s being taken away.”
Olson, joined by David Boies, one of the country’s best known litigators, argued on behalf of two Virginia couples that the state’s 2006 constitutional amendment barring same-sex marriage violates the U.S. Constitution’s guarantee of equal protection under the law and discriminates against homosexuals.Allen, named to the bench by President Barack Obama in 2011, concluded the hearing saying,“You’ll hear from me very soon.”
Similar lawsuits are pending in states including Pennsylvania, Florida and Michigan. Gay marriage is now permitted in 17 U.S. states and in the District of Columbia. Lawyers on all sides see the issue as headed eventually for a decision by the U.S. Supreme Court.
The decision in the California case did not overturn all state laws against same-sex marriage because it was based on standing, not on the merits. That left the California ban overturned without doing the same to other state laws. But the reasoning of the court’s simultaneous ruling in the DOMA case clearly undercuts the legal rationale for such laws and they will almost inevitably be declared unconstitutional. The only question is how soon this will happen. Will Justice Kennedy be prepared to take his reasoning to its inevitable conclusion only two or three years after refusing to do so last time? We have no way of knowing.