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Prop 8 legal team picks next case, will join Virginia marriage equality challenge

LGBT Legal Cases Marriage equality Marriage Equality Trials

Virginia state sealDavid Boies and Theodore Olson made waves when the two lawyers–from opposite ends of the political spectrum–teamed up with the American Foundation for Equal Rights to challenge the constitutionality of California’s Proposition 8.

After their historic win at the Supreme Court this summer, the legal duo is back with their next case: a challenge to Virginia’s marriage equality ban with the ultimate aim, no doubt, of a nationwide ruling in favor of equal marriage rights.  The Washington Post has more:

The American Foundation for Equal Rights — with its attention-getting political odd couple of conservative Republican lawyer Theodore Olson and liberal Democrat David Boies — will announce Monday it is joining a lawsuit against what the lawyers called Virginia’s “draconian” laws prohibiting same-sex marriages, the recognition of such marriages performed where they are legal, and civil unions.

It is one of dozens of lawsuits filed across the nation by same-sex marriage activists who say they feel emboldened by the Supreme Court’s decisions in June that overturned the federal Defense of Marriage Act (DOMA) that forbade recognition of same-sex marriages and separately allowed such unions to resume in California.

According to the Post, AFER received an invitation to join the challenge from attorneys for the two plaintiff couples, Timothy Bostic and Tony London and Carol Schall and Mary Townley, both of Norfolk.  Olson called Virginia an “attractive target” because the state has emphatically rejected both marriage equality and civil unions in the past. Virginia’s marriage equality ban can only be changed by voters, either after a constitutional convention or through a constitutional amendment approved by the General Assembly after two sessions with an intervening election.

AFER, the organization behind Olson and Boies, was the sole sponsor of the Proposition 8 challenge, which began in 2009 and concluded earlier this year.  In this case, they are joining lawyers who are unaffiliated with any major organization.  Another marriage equality case which is also currently proceeding in Virginia was filed by two other major LGBT legal organizations, Lambda Legal and the ACLU.

The lawsuit which AFER is now attached to is proceeding at an expedited rate, at the request of Virginia.  The Lambda Legal/ACLU lawsuit, which was filed as a class-action challenge in the state’s western district, has not been expedited.  This morning, perhaps in response to the AFER announcement, the legal organizations filed a brief in their case in support of the plaintiffs’ motion for summary judgment.  In a press release Greg Nevins, a senior attorney in Lambda Legal’s Atlanta office, said the following:

“The papers we filed today ask the court to get to the heart of the matter. Barring same-sex couples from marriage is clearly unconstitutional. We do not want a country divided by unfairness and discrimination. Same-sex couples are in loving, committed relationships in every region of our nation and should be treated the same way, whether they live in Maine or Virginia.”

Olson told the Post that he does not believe there will be a trial in the Norfolk proceedings, which will be heard by U.S. District Judge Arenda Wright Allen, an Obama appointee.  He also pushed back against criticisms that marriage equality advocates are moving too quickly after the Supreme Court’s relatively cautious actions this summer.

“I’m not going to get into the justices and what they each said and what Justice Scalia said,” Olson told the paper. “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.”

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