TUESDAY: Fourth Circuit to Hear Argument in Virginia Marriage Case

by Charles Joughin

Bostic v. Schaefer on appeal after judge ruled Virginia same-sex marriage ban unconstitutional

WASHINGTON – On Tuesday, May 13, less than a year after being filed in federal district court and just months after a ruling by that court, a challenge to Virginia's ban on marriage equality will be heard by a three-judge panel of the United States Court of Appeals for the Fourth Circuit.  Bostic v. Schaefer (formerly Bostic v. Rainey) challenges Virginia’s constitutional amendment forbidding the state from performing or recognizing the marriages of same-sex couples. 

“The committed and loving gay and lesbian couples making their case to the Fourth Circuit on Tuesday are asking for something that should seem simple – the right to marry the person they love in the state they call home,” said Human Rights Campaign legal director Sarah Warbelow.  “Virginia’s ban on marriage equality only serves to harm the people of the Commonwealth, and it should be struck down once and for all.” 

The case is on appeal to the Fourth Circuit after U.S. District Judge Arenda L. Wright Allen ruled on February 13, 2014 in favor of theBostic plaintiffs, striking down the state’s marriage ban.  In her ruling, the judge wrote:

“Plaintiffs honor, and yearn for, the sacred values and dignity that other individuals celebrate when they enter into marital vows in Virginia, and they ask to no longer be deprived of the opportunity to share these fundamental rights…The men and women, and the children too, whose voices join in noble harmony with Plaintiffs today, also ask for fairness, and fairness only. This, so far as it is in this Court’s power, they and all others shall have.”

In July of 2013, Tim Bostic and Tony London went to the Norfolk Circuit Court Clerk’s office to obtain a marriage license, but they were turned away because of Virginia’s ban on marriage equality.  Soon after, the couple filed a lawsuit in the U.S. District Court for the Eastern District of Virginia. They are joined in the case by Mary Townley and Carol Schall, whose legal California marriage isn’t recognized by their home state of Virginia.  The plaintiffs are represented by attorneys Ted Olson and David Boies on behalf of the American Foundation for Equal Rights (AFER). Olson and Boies also represented the plaintiffs in Hollingsworth v. Perry challenging California’s Proposition 8 – a case that was ultimately heard by the U.S. Supreme Court.

In March of 2014, attorneys from Lambda Legal and the ACLU were permitted to intervene in the Bostic case on behalf of all Virginia’s same-sex couples, including their clients in another case challenging the state’s marriage ban – Harris v. Rainey.

The U.S. Court of Appeals for the Fourth Circuit has jurisdiction over Maryland, North Carolina, South Carolina, Virginia, West Virginia and Washington, DC.  Presently there are at least six federal marriage cases in states within the Fourth Circuit that ban marriage equality. Maryland and Washington, D.C. are the only jurisdictions within the Fourth Circuit with marriage equality.

Presently five federal appeals courts are slated to preside over nine marriage equality cases in the coming weeks and months.  Other cases that will go before circuit courts include: Sevcik v. Sandoval (Nevada) in the Ninth Circuit, DeLeon v. Perry (Texas) in the FifthCircuit, and four cases out of the Sixth Circuit - Tanco v. Haslam  (Tennessee), Bourke vs. Beshear (Kentucky), Obergefell v. Kasich(Ohio), and DeBoer v. Snyder (Michigan).  The Sixth Circuit holds the distinction of being the only federal appeals court to date that will consider marriage cases from all states within its jurisdiction.  A three-judge panel of the Tenth Circuit heard argument in two marriage cases last month; Kitchen v. Herbert (Utah) and Bishop v. Smith (Oklahoma).

There are over 70 marriage equality cases working their way through the judicial system across the country.  These cases have been filed in 29 states plus Puerto Rico and account for hundreds plaintiffs taking on state marriage bans.  Some of the cases were filed in state courts, while the others were filed in federal courts.  Same-sex couples can legally marry in seventeen states and the District of Columbia, while 33 states have a law or constitutional amendment restricting marriage to the union of one man and one woman.  Only four states – Alaska, Montana, North Dakota and South Dakota – have bans on marriage equality but no current court cases challenging their constitutionality.

In June of last year, the U.S. Supreme Court ruled on two landmark marriage cases –Hollingsworth v. Perry and United States v. Windsor, returning marriage equality to California and striking down key sections of the Defense of Marriage Act (DOMA), respectively.   Since then, not a single state marriage ban has survived a federal court challenge.

Learn more about this and other marriage equality cases at www.americansformarriageequality.com

The Human Rights Campaign is America's largest civil rights organization working to achieve lesbian, gay, bisexual and transgender equality. By inspiring and engaging all Americans, HRC strives to end discrimination against LGBT citizens and realize a nation that achieves fundamental fairness and equality for all.


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