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Ted Olson, David Boies and AFER team join fight for marriage equality in Virginia

WASHINGTON – The American Foundation for Equal Rights (AFER), the sole sponsor of the landmark federal constitutional challenge that eliminated California’s Proposition 8, today announced that it has joined the federal constitutional challenge to Virginia’s ban on marriage equality, Bostic v. Rainey.

The Bostic case contends that the Virginia Marriage Amendment and other Virginia laws that prohibit gay and lesbian couples from marrying are unconstitutional, restrict personal freedom, and cause serious harm to loving and committed couples and their families.

Bostic, which was filed in the United States District Court for the Eastern District of Virginia, charges that the Virginia Marriage Amendment and other Virginia laws violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment of the United States Constitution, and single out gays and lesbians for a disfavored legal status, thereby creating a category of “second-class citizens.”

“This case is about state laws that violate personal freedoms, are unnecessary government intrusions, and cause serious harm to loving gay and lesbian couples,” said Plaintiffs’ lead co-counsel Theodore B. Olson of Gibson, Dunn & Crutcher LLP. “As a Virginian and a conservative, I believe these laws stand against the very principles of our nation’s founding. Our Plaintiffs have been together for a combined 52 years, yet Virginia will not allow their relationship to be recognized in any way. Virginia’s laws violate core personal freedoms, they are humiliating and demeaning, and they harm loving families.”

“Virginia gave us the first marriage equality case—and the one that most clearly established that the right to marry the person you love is a fundamental right of all Americans. It’s fitting, then, that Virginia be the battleground for another great test of that principle,” said Plaintiffs’ lead co-counsel David Boies of Boies, Schiller & Flexner LLP. “Gay and lesbian couples are guaranteed the same marriage rights as straight couples, and the Commonwealth of Virginia cannot impinge on that fundamental right. Any alternative is separate and unequal and relegates gays and lesbians, and the children they are raising, to second class status.”

Enacted in November 2006, the Virginia Marriage Amendment, also known as the Marshall-Newman Amendment, amended the Virginia Constitution to define marriage as solely between one man and one woman and bans recognition of any legal status “approximat[ing] the design, qualities, significance, or effects of marriage” for gays and lesbians.

“From the moment the Perry lawsuit was filed in 2009, to the day the Supreme Court issued its ruling in June of this year, we have fought for full federal marriage equality for all Americans,” AFER executive director Adam Umhoefer said. “While the Supreme Court victory to end Proposition 8 was a monumental victory, there are still millions of gay and lesbian Americans, and their families, who are being treated as second-class citizens. The Bostic case is a natural next step in the journey toward equality for all.”

The Plaintiffs in the case are Tim Bostic, an English professor, and Tony London, a real estate agent, who live in Norfolk and have been together for 24 years. They are joined by Carol Schall, an autism researcher, and Mary Townley, who also works with special needs youth, from Richmond. Carol and Mary have been together for 28 years and have a sixteen-year-old daughter. They obtained a marriage license from the State of California in 2008.

Plaintiffs are suing State Registrar of Vital Records Janet M. Rainey and Norfolk Circuit Court Clerk George E. Schaefer. Defendant Rainey is represented by attorneys from the Virginia Office of the Attorney General.

While a bipartisan majority of Americans support marriage equality in all 50 states, 37 states — including the Commonwealth of Virginia — still prohibit gay and lesbian couples from making the commitment of marriage. In Virginia, a strong majority – 55% – support marriage equality, according to a poll conducted by Greenberg Quinlan Rosner Research and Target Point Consulting. That number jumps to 71% for Virginians under the age of 30, indicative of the direction Virginia is moving.

“The Perry decision in California was a ground-breaking victory not only as legal precedent, but also as a vehicle to move forward public sentiment across the nation in support of marriage equality,” said Tom Shuttleworth of Shuttleworth, Ruloff, Swain, Haddad & Morecock. “We are thrilled that Ted Olson and David Boies, through AFER, have accepted our invitation to join us in this case. Their significant experience in battling and eliminating California’s discriminatory Proposition 8 will serve Virginia and the Country well.”

AFER is the sole sponsor of the successful federal constitutional challenge to California’s Proposition 8, led by distinguished lead co-counsel Theodore B. Olson and David Boies. The High Court’s decision in Hollingsworth v. Perry, made permanent the landmark United States District Court ruling that found Proposition 8 unconstitutional and reinstated the freedom to marry for gays and lesbians in California. The District Court held:

“Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.”

The Perry case is the first case involving the right of gay and lesbian Americans to marry ever to be fully briefed and argued before the Supreme Court. From the day the Perry case was filed, to the day the case was decided by the Supreme Court, more than 10 states either removed barriers to marriage equality or legalized same sex marriage. With California now on the list of states with marriage equality, nearly 30% of Americans live in a state where every citizen can marry the person they love.

Since its founding in 2009, the American Foundation for Equal Rights has fought for full federal marriage equality for all Americans