April 12, 2014 at 9:55 am EDT | by Michael K. Lavers
Ted Olson: Va. gay marriage ban ‘flatly unconstitutional’
David Boies, Ted Olson, gay marriage, same-sex marriage, marriage equality, gay news, Washington Blade

Ted Olson and David Boies (Washington Blade photo by Michael Key)

Former U.S. Solicitor General Ted Olson on Friday described Virginia’s same-sex marriage ban as “blatant discrimination” that is “unjustified, un-American and flatly unconstitutional.”

“The unmistakable purpose and effect of Virginia’s marriage prohibition is to stigmatize gay men and lesbians – and them alone – and enshrine in Virginia’s constitution and statutory code that they are ‘unequal to everyone else,’” he said in a brief filed with the 4th U.S. Circuit Court of Appeals in Richmond, Va., that urges it to uphold a federal judge’s ruling that struck down the commonwealth’s gay nuptials ban.

Olson said the commonwealth’s marriage amendment “actually harms children” because it prevents gay men and lesbians from tying the knot. Three of the four leading plaintiff couples who are challenging the state’s same-sex marriage ban – Mary Townley and Carol Schall of Chesterfield, Joanne Harris and Jessica Duff of Staunton and Victoria Kidd and Christy Berghoff of Winchester – are raising children.

Timothy Bostic and Tony London of Norfolk, who filed a lawsuit against the state’s gay nuptials ban last July, have been together for 25 years.

“If the commonwealth’s interest truly were ensuring that children received the benefits of parents’ remaining together to rear the children they conceive, that professed objective would be advanced only by allowing same-sex couples to marry,” says Olson.

Olson also notes in the brief filed on behalf of Townley and Schall and Bostic and London that Virginia’s interracial marriage ban dated back to the colonial period. The aforementioned prohibition remained in place until 1967 when the U.S. Supreme Court struck it down in its landmark Loving v. Virginia decision.

“The history of Virginia’s marriage prohibition demonstrates that the laws were intended to oppress,” says Olson. “They were designed to exclude gay men and lesbians from marriage in Virginia on the baseless supposition that gay men and lesbians were launching an ‘attack’ on traditional families that would ‘weaken’ the institution of marriage.”

Olson filed his brief in the Bostic case on the same day Virginia Attorney General Mark Herring defended U.S. District Judge Arenda L. Wright Allen’s February ruling that struck down the commonwealth’s same-sex marriage ban.

Herring announced shortly after he took office in January he will not defend the marriage amendment that voters in 2006 approved by a 57-43 percent margin. Norfolk Circuit Court Clerk George Schaefer, III, and Prince William County Circuit Court Clerk Michèle McQuigg defended the gay nuptials ban in briefs their lawyers filed with the 4th Circuit on March 28.

“The clerks’ narrow vision of marriage and expansive vision of state power to intrude on personal freedoms demean the institution of marriage and the dignity of gay people as free and equal human beings,” wrote Luke C. Platzer of Jenner and Block LLP, a D.C. law firm, in a brief he filed with the 4th Circuit on Friday on behalf of Harris and Duff and Kidd and Berghoff.

The American Civil Liberties Union and Lambda Legal last August filed a lawsuit against the state’s marriage amendment on behalf of the women.

U.S. District Judge Michael F. Urbanski in January certified the ACLU and Lambda Legal lawsuit as a class action. The 4th Circuit last month allowed the groups to intervene in the Bostic case.

Lawyer: Defendants’ claims are ‘bizarre’

Platzer dismissed claims the marriage amendment is necessary for the procreation of children.

“The clerks’ assertion that allowing same-sex couples to marry would sever the association between marriage and raising children is bizarre,” he says.

OurServe-SLDN and the American Military Partner Association and a group of constitutional law scholars that include Deborah Hellman and John C. Jeffries, Jr., of the University of Virginia School of Law on Friday filed amicus briefs with the 4th Circuit.

“Gay and lesbian individuals have limited ability to protect themselves through the political process against continued public and private discrimination,” writes Lori Alvino McGill of the D.C. law firm Latham and Watkins LLP on behalf of the scholars, referring to the defendants in the Bostic case who argue gays and lesbians have gained political influence in recent years. “The barriers to gay and lesbian persons achieving equal respect, equal dignity, and equal rights through the political process remain daunting, and private discrimination and hostility are still often both widespread and fierce.”

Neighboring Maryland is among the 18 states and D.C. that have extended marriage rights for same-sex couples.

Gays and lesbians in North Carolina, West Virginia, Pennsylvania, Florida, Alabama and other states have filed marriage lawsuits since the U.S. Supreme Court last June struck down a portion of the Defense of Marriage Act. A three-judge panel with the 10th U.S. Circuit Court of Appeals on Thursday heard oral arguments in an appeal of a federal judge’s ruling late last year that found Utah’s same-sex marriage ban unconstitutional.

The 4th Circuit is scheduled to hear oral arguments in the Bostic case on May 13.

Michael K. Lavers has been a staff writer for the Washington Blade since May 2012. The passage of Maryland's same-sex marriage law, the HIV/AIDS epidemic, the burgeoning LGBT rights movement in Latin America and the consecration of gay New Hampshire Bishop V. Gene Robinson are among the many stories he has covered since his career began in 2002. Follow Michael

  • When my son came out it changed my life.. I wemtbfromy active l LDS (Mormon) to PFLAG leader. A journey of great difficulty but great love. I hope we have full equality in our country soon.

  • brian

    “The history of Virginia’s marriage prohibition demonstrates that the laws were intended to oppress,” says Olson. “They were designed to exclude gay men and lesbians from marriage in Virginia on the baseless supposition that gay men and lesbians were launching an ‘attack’ on traditional families that would ‘weaken’ the institution of marriage.”
    Kudos and huzzahs to Olson and Boies and their Plaintiff’s…AGAIN!!!
    As we watch an avalanche of legal action for Marriage Equality all across our nation, let’s remember it was the odd couple of Ted Olson and David Boies (plus their courageous and steadfast plaintiffs and sponsors in CA) that blazed a trail ahead of today’s said legal avalanche.
    From all corners of the Commonwealth of Virginia to the farthest heart-of-Dixie reaches of the 4th Circuit, LGBT residents are sending all good thoughts, prayers or vibes for Olson’s and Boies’ ultimate triumph of love and marriage.

    Thank you again, gents!

  • Rick Mangus

    Ted Olson is a good, honest and decent man who should seek public office!

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