Monday, September 30, 2013

AFER Joins Federal Marriage Lawsuit In Virginia

AFER, the American Foundation for Equal Rights, is the organization behind the ultimately successful federal lawsuit against Proposition 8 in California in May 2009 which led to the Supreme Court's landmark decision in Hollingsworth v Perry on June 26, 2013. It should be noted that at the time AFER filed its federal lawsuit against Proposition 8, the traditional LGBT legal organizations issued a joint statement declaring the action to be "wrong."

AFER is announcing today that it is joining another federal lawsuit to win marriage equality, and they are doing it in the Commonwealth of Virginia. There's a current lawsuit already filed in Virginia to win marriage equality there called Bostic v. Rainey and the superlawyer team of David Boies and Ted Olson.

From the press release:
Washington, DC – The American Foundation for Equal Rights (AFER), the sole sponsor of the landmark federal constitutional challenge that eliminated California’s Proposition 8 and restored marriage equality in the nation's most populous state, will announce that it has joined the federal legal challenge to Virginia’s ban on marriage for gay and lesbian couples, Bostic v. Rainey.  The case, filed in U.S. District Court for Virginia's Eastern District on behalf of two couples, calls the Virginia Marriage Amendment, which prohibits gay and lesbian couples from marrying, unconstitutional because it violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, violates Due Process and singles out gays and lesbians for a disfavored legal status, thereby creating a category of “second-class citizens.”

The Bostic case once again joins the bipartisan legal team of Theodore B. Olson and David Boies, who successfully defeated California’s Proposition 8 in Federal Court, to continue the fight for marriage equality.
Virginia has an interesting resonance on the issue of marriage equality because it is the location of the landmark lawsuit Loving v Virginia which the Supreme Court used to strike down all state laws banning interracial marriage and re-affirmed the principle that the right to marry is a fundamental right under the U.S. Constitution.

Virginia is a purple state (Republican controlled on the state level, but has voted twice for Barack Obama for President) and has no statewide protections for LGBT individuals at the state level. If a federal lawsuit against a state marriage amendment can succeed in Virginia then the thirty-five other states which have amendments and bans against same-sex marriage are likely susceptible to lawsuits.

Chris Geidner notes that the Virginia marriage amendment was passed in November 2006 by voters 57 percent to 43 percent and gives the text:
“That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions. This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.”
Note that this measure not only bans same-sex marriage but it also bans recognition of domestic partnerships as well. Most of the state bans on marriage (20) include similar language.

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