Boies, Olson Take on Virginia Marriage Ban

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.

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  • colnago80

    Interestingly enough, the federal judge in Pennsylvania who will hear that case is none other then John Jones III of Dover fame. Jones has already weighed in with a ruling rejecting the defendants’ contention that the case should be thrown out. In his ruling, the judge said: in his opinion the legal system’s view of sex and sexual identity cases has undergone a “sea change” over the past four decades.

    http://goo.gl/WcxFoz

  • whheydt

    In the Virginia case, from one article I read, the judge very nearly cancelled the hearing based on the Virginia AG’s filing in support of the plaintiffs.

    As regards California, the trial court reasoning–which is what was left intact–was much stronger than the appellate court. The trial judge ruled based on Due Process and Equal Protection. The appeals ruled that the state couldn’t grant a right and then take it away, a situation that applied *only* in California at that time.

  • cptdoom

    David Boies and Theodore Olson are now representing the plaintiffs challenging an identical law in the state of Virginia.

    Actually, the anti-gay amendment is much worse than Prop 8, which is part of the reason, as I understand it, that Olson and Boies decided this was the case to join. Prop 8 left the existing system of domestic partnerships in place, while the VA amendment forbids recognition of any relationship like marriage for same-sex couples. No civil unions, no domestic partnerships, no ability for same-sex couples to even purchase health insurance through their employers. Some say the amendment is worded such that wills leaving property from one member of a same-sex couple to another would not be allowed. From what I’ve read, Olson and Boies see the strictness of the amendment as the reason this is the case to bring, because there is no pretense of equality for same-sex couples.

    It occurs to me that might also give the Supreme Court a way out of overturning all amendments, if they were to somehow rule the lack of any analogous legal relationship for same-sex couples is the due process violation. that would leave in place those amendments that allow for civil unions, and keep a lot of action at the state level.

  • Eric Ressner

    It occurs to me that might also give the Supreme Court a way out of overturning all amendments, if they were to somehow rule the lack of any analogous legal relationship for same-sex couples is the due process violation, that would leave in place those amendments that allow for civil unions, and keep a lot of action at the state level.

    I don’t deny that the SC might take that way out, given their tendency toward narrow rulings in personal liberty cases. But that would open a whole other can of worms. Federal benefits are only available to married couples. Those in “analogous legal relationships” need not apply.

  • abb3w

    @3, cptdoom

    that would leave in place those amendments that allow for civil unions, and keep a lot of action at the state level.

    …and at which point, David Boies and Theodore Olson start a third round, saying that Separate But Equal was struck down as inherently flawed in the Brown v Board series of cases half a century back.

  • pixiedust

    cptdoom @3: “Some say the amendment is worded such that wills leaving property from one member of a same-sex couple to another would not be allowed.”

    IANAL nor have I read the amendment but…. I can’t see how a state can prevent person A from leaving property to person B just because A and B are in a gay marriage that the state doesn’t recognize.

    I hazard the guess that the amendment may have prevented same-sex couples from claiming a marital deduction. All of the states I am familiar with that levy an estate tax have an unlimited marital deduction at the demise of one of the spouses. This means no estate tax is levied on property that passes from the deceased spouse to the surviving spouse. Useful for estate planning.

    An alternative explanation could be that VA did not permit a surviving spouse of a gay marriage to “elect” against a will. That provision prevents someone from disinheriting a spouse. The idea being that the state would have to provide for a disinherited spouse. In my state, for example, a surviving spouse is entitled to no less than 1/3 of his/her spouse’s estate, regardless of what the deceased spouse’s will says.

    Subsequent to the 2006 no-gay-marriage amendment, however, Virginia abolished its state estate tax. Which means a marital deduction is irrelevant. However, a spousal election provision could still be an issue.