The American Foundation for Equal Rights is planning to take on Virginia’s ban on same-sex marriage. In fact, the team of Theodore Olson and David Boies are planning to join a lawsuit aimed at taking down many of Virginia’s draconian laws regarding same-sex marriage.
Olson and Boies were behind the lawsuit which took down California’s ban on same-sex marriage popularly known as Proposition 8. The suit’s ultimate goal is to get same-sex marriage declared a constitutionally guaranteed right in the same way that marriage was in the Loving v. Virginia case.
Olson, Boies and AFER were invited to join the case by the attorneys for the plaintiffs. Olson, who lives in Virginia, called the state an “attractive target” due to the extreme nature of the laws in the state. He also said that “The more unfairly people are being treated, the more obvious it is that it’s unconstitutional.”
Olson and Boies fell short of their goal to have same-sex marriage declared a constitutional right in the Prop 8 case. In that case, titled Hollingsworth v. Perry, the original defendants of Governor Arnold Schwartzenegger and Attorney General Jerry Brown chose to not defend the law and the people behind the 2008 amendment were allowed to defend it in court. While that was the discretion of Judge Vaughn Walker, the US Supreme Court ruled that the groups had no standing to appeal Walker’s ruling, meaning that Walker’s ruling was upheld and Prop 8 overturned.
Olson is expecting to rely heavily on Walker’s very thorough ruling in the Prop 8 case noting that it “is a great foundation for us which we can convey into the federal courts in Virginia.” At the state’s request, the Virginia case is moving quickly.
How the upcoming November elections will impact the case have yet to be seen.
In the seven years since Virginians approved the marriage ban, the sentiment in the state has moved towards recognizing same-sex marriage, but the Republicans controlling the state legislature are refusing to put it to a new vote.
The complaint out of Norfolk, VA is also relying heavily on the opinion of Justice Anthony M. Kennedy striking down Section 3 of the Defense of Marriage Act. Kennedy wrote in his majority opinion that “DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.”
Olson is not moved by the theory that the Supreme Court is now just going to let the political process take the lead, as some have said. Olson stated that “I’m not going to get into the justices and what they each said and what Justice Scalia said. Given what was said in DOMA [decision] and given the record we made in California and given what we’re going to establish in Virginia, we’re going to be able to persuade a majority of the court that this is the right thing.”
It is quite possible that the US Supreme Court could simply uphold a decision by the appellate courts and not rule directly on the matter, but overturn the bans on same-sex marriage in that manner.