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Lambda Legal, ACLU want to intervene in AFER’s Virginia marriage equality challenge in Fourth Circuit

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Fourth Circuit map
Fourth Circuit map
Lambda Legal, the ACLU, and Jenner & Block’s Paul Smith have filed a brief in the Fourth Circuit Court of Appeals seeking to intervene in Bostic v. Schaefer, the challenge currently being litigated by the American Foundation for Equal Rights (AFER). Lambda Legal and the ACLU’s case, Harris v. Rainey, is currently in district court awaiting a decision on the merits. Harris is a class-action, including all same-sex couples in Virginia except the Bostic plaintiffs.

The groups write that:

Such intervention will not only ensure that the interests of the Harris Class are represented before this Court by class counsel, but will also enable the Court to consolidate this appeal with the expected appeal in Harris with minimal disruption once the fully submitted summary judgment motions are decided in that case.

They note that “[State Registrar Janet] Rainey cannot consent at this time and will file a response, and counsel for the remaining parties indicated they do not consent.”

Especially because a decision by the Fourth Circuit Court of Appeals in the Bostic case could be a precedent for a future decision in the Harris case, the parties argue that intervention to defend their own interests in the case would be the better course. If it’s not allowed, they suggest, the holding in their own case would be effectively “pre-empted” by a decision by the Fourth Circuit in this case:

No matter how well-represented the Bostic plaintiffs may be, it would turn the principles of civil procedure on their heads if a litigation brought by four individuals were allowed to effectively preempt through stare decisis the ongoing litigation brought on behalf of all same-sex couples in Virginia. Such a course of action would effectively appoint the Bostic plaintiffs as de facto class representatives without any of the protections or duties of representation imposed by Rule 23.

Lambda Legal issued a press release, which reads, in part:

“We represent a class of all same sex couples in Virginia for whom the denial of marriage inflicts a variety of harms, and they deserve to be heard,” said Greg Nevins, Counsel in Lambda Legal’s Southern Regional Office based in Atlanta. “The Bostic appeal could decide the fate of not only both couples involved, but also the entire class of over 14,000 same-sex couples in Virginia who we represent.”

The Harris case is awaiting decision from the court. Once that decision is issued, it will be appealed to the Fourth Circuit. In the meantime, allowing the Harris class action to intervene in the Bostic case now will allow the two cases to be consolidated on appeal without delaying or disrupting either case.

“From the beginning, both of these cases have proceeded on parallel tracks, and for the good of all couples in the state, we hope it will remain that way,” said Joshua Block, staff attorney with the ACLU Lesbian Gay Bisexual and Transgender Project. “This motion just ensures that all affected couples have their day in court.”

“Marriage is a fundamental right of all Virginians,” said Claire Guthrie Gastañaga, executive director of the ACLU of Virginia. “That’s why it’s important that all couples in both cases be represented in the appeals court at the same time.”

AFER spoke to the Washington Blade:

“The Bostic case is extremely well positioned heading into the Fourth Circuit,” American Foundation for Equal Rights Executive Director Adam Umhoefer told the Washington Blade in a statement. “The district court issued an order that, if it is affirmed, will ensure that all gay and lesbian Virginians who wish to marry, or to have their marriage recognized, can do so.”

Herring’s spokesperson, Michael Kelly, declined to specifically comment on the Lambda Legal and ACLU request to join the Bostic case.

“Attorney General Herring’s priority remains ensuring that higher courts have an opportunity to hear this case as quickly as possible to settle the fundamental issues it presents,” said Kelly.

Matthew D. McGill, co-counsel for the plaintiffs in the Bostic case, questioned why the two groups petitioned the 4th U.S. Circuit Court of Appeals to join the Bostic case.

“The addition of new parties to the case at this late stage risks delaying the proceedings, but there is not a moment to lose when gay and lesbian couples and families across Virginia – and other states in the Fourth Circuit – are experiencing real harm,” said McGill. “We hope the Harris plaintiffs and their lawyers will continue to support our shared goal of marriage equality by filing an amicus brief alongside us.”

The Bostic case will be fully briefed in the Fourth Circuit by mid-May.

Thanks to Kathleen Perrin for this filing

For more information on Bostic v. Rainey (formerly Bostic v. McDonnell)from The Civil Rights Litigation Clearinghouse, click here. For more information on Harris v. Rainey (formerly Harris v. McDonnell)from The Civil Rights Litigation Clearinghouse, click here.


  • 1. DavidAZ  |  February 26, 2014 at 7:05 pm

    I'm confused. Is Matthew McGill saying that having Lambda Legal and the ACLU involved in the Bostic case like having "Too Many Cooks In The Kitchen?"

  • 2. Scottie Thomaston  |  February 26, 2014 at 7:08 pm

    He appears to be arguing that allowing intervention would slow down the appeal.

  • 3. AJMintheOC  |  February 26, 2014 at 8:01 pm

    I can see it becoming a problem communicating and coordinating among 3 organizations. It would definitely slow down the process. AFER has a great track record after the Prop. 8 case, so why interfere and not just file supportive documents? We actually are dues-paying members to all 3 organizations.

  • 4. Rick O.  |  February 26, 2014 at 8:12 pm

    Oh damn – large egos emerging. Boards of each organization should immediately confer and not let trial attorneys run this into squabbling.

  • 5. Zack12  |  February 27, 2014 at 8:55 am

    Indeed… otherwise we will be too busy fighting among ourselves to worry about marriage equality.
    On the other hand, while there might be some egos invovled, the bigots on the other side all have the same goal and thus less likely to be involved in infighting, we would do well to do the same.

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