On Monday, civil rights organizations Lambda Legal and the American Civil Liberties Union filed a motion for summary judgment in a Virginia federal court on behalf of a class of plaintiffs seeking state recognition of same-sex marriages in that state. The case, Harris et al. v. McDonnell, was filed in the U.S. District Court for the Western District of Virginia on behalf of all same-sex couples who wish to marry in Virginia, or who have married elsewhere and now seek the recognition of their marriages in Virginia.
Interestingly, another federal case in Virginia is seeking exactly the same change in the law. The second case, Bostic et al. v. Rainey, recently made headlines when attorneys David Boies and Ted Olson (the prominent attorneys who were on the same-sex marriage side in Hollingsworth v. Perry, the case challenging California’s Proposition 8 ban on same-sex marriage that made it to the Supreme Court last term) announced that they were joining that case as counsel.
In this column, I discuss the significance of these cases and why one or both of them could make it all the way to the U.S. Supreme Court. I also note the increasing prevalence of legal challenges to anti-same-sex-marriage laws throughout the country.
The Two Virginia Cases
In the case filed by Lambda Legal and the ACLU, the named plaintiffs include one couple who sought and were denied a marriage license, and another couple who were legally married in Washington, D.C. but whose marriage Virginia does not recognize. The complaint also defines the class of plaintiffs to the lawsuit as consisting of every Virginia resident who “either has been unable to marry his or her same-sex partner in Virginia because of the marriage ban or validly married a partner of the same sex in another jurisdiction but is treated as a legal stranger to his or her spouse under Virginia law.”
One criticism that came up in the aftermath of the Supreme Court’s decision earlier this year in Hollingsworth v. Perry was that the federal district judge who issued a statewide injunction exceeded his authority to render a judgment beyond the named plaintiffs of that case. Harris avoids that situation altogether by naming a whole class of plaintiffs. Although the criticism did not pan out in the Hollingsworth case, counsel in Harris likely wanted to leave no possibility that a technicality might render impotent an otherwise favorable judgment.
The plaintiffs in the Bostic case are similarly situated: one couple was denied a Virginia marriage license because they are a same-sex couple, and the other couple was legally married in California but denied recognition of their marriage in Virginia. Unlike in Harris, the complaint in Bostic does not include the class of all same-sex couples in Virginia. However, if the outcome in California is any indication, the lack of an identified class may not prove to be a problem should a judge rule in the plaintiffs’ favor.
Both cases I noted above cite the U.S. Supreme Court’s decision in United States v. Windsor from earlier this year. In Windsor, the Court struck down Section 3 of the Defense of Marriage Act (DOMA), which defined marriage for federal purposes as being between a man and a woman. The briefs cite Windsor for the proposition that a law violates equal protection principles if its “purpose and practical effect . . . [is] to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages.”
Why Virginia?
To some, Virginia is an unlikely venue for same-sex marriage litigation, or at least not a state that is any more attractive than many other states in that respect. However, Ted Olson noted that Virginia is an excellent venue for the very reason that many people would think that it is not: namely, its rejection of same-sex marriage is so thorough that its discriminatory treatment of its residents is all the more evident.
Indeed, Virginia law is adamantly opposed to recognition of same-sex marriages. In 1975, Virginia adopted a statute providing that “a marriage between persons of the same sex is prohibited.” In 1997, the legislature reinforced this position by prohibiting recognition of same-sex marriages legally entered into elsewhere: “Any 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.” The state then passed even more extensive legislation, banning civil unions and domestic partnerships as well as marriages. In 2005, moreover, the legislature amended the state constitution to prohibit same-sex marriages at a constitutional level—a redundant move that was more symbolic than anything.
In this context, Virginia leaves no doubt as to its position on same-sex marriage. And it is for this reason that these civil rights organizations have chosen the state as a venue for their challenges.
Incidentally (or perhaps, relatedly), Virginia’s discriminatory laws served as the basis for the U.S. Supreme Court’s landmark decision in Loving v. Virginia, in which the Court struck down all race-based restrictions on marriage in the United States. In Loving, the Court held that that Virginia’s anti-miscegenation statute violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.
These are the same two constitutional provisions that the plaintiffs in these Virginia cases rely upon, in asking the courts to strike down the state’s prohibition on same-sex marriages.
The Race to the High Court
Since the U.S. Supreme Court’s decision in Windsor, numerous lawsuits have cropped up all over the country challenging state laws that define marriage in those states as between a man and a woman. Some advocates fear that many of these legal challenges lack the resources and support necessary to win an impactful decision that affects a large number of people. In the worst-case scenario, some fear that a poorly managed case could even lead to an unfavorable decision, substantially harming other cases that might have been more successful due to better lawyering, better facts, or both.
Another interpretation of this spate of lawsuits is that it reflects that people across the nation are increasingly coming to the understanding that all people deserve equal rights under the law—whether that equality pertains to the right to marry, to vote, or any other constitutionally protected right.
The neat thing here with respect to out of state marriage in
Virginia is that a Court can find for the plaintiffs without ever reaching the
Constitutional issue of whether or not same sex marriage is a guaranteed Constitutional right.
The reason is that Virginia engages in disparate treatment. It recognizes out
of state marriages that are between opposite gender couples. Therefore it needs a legitimate reason other than animus to not recognize out of state marriages between two same sex individuals.
As the trial in Perry showed, this is an impossible task. Thus a Court could rule that Virginia failed to advance an argument for its positions, and so its ban on recognition of out of state marriages falls.