Lambda Legal and ACLU File Federal Class Action Challenging Virginia's Gay Marriage Ban

Following up on their previously announced intention to challenge Virginia's anti-gay marriage ban, Lambda Legal and the ACLU filed a class action suit this morning in the U.S. District Court for the Western District of Virginia, Harrisonburg Division.  This comes in the wake of a suit filed last month in the U.S. District Court for the Eastern District of Virginia, Norfolk Division, filed by a Norfolk couple.  The new lawsuit, as noted is a class action suit, and the plaintiffs are  Joanne Harris and Jessica Duff of Staunton and Christy Berghoff and Victoria Kidd of Winchester, and seeks to represent all same-sex couples in Virginia who wish to marry there or who have married in other jurisdictions.  Here are excerpts from Lambda Legal's blog that discusses the lawsuit:

“Virginia is home for us. Our families are here, our jobs are here, and our community is a great support for us, but it makes us sad that we cannot get married where we live,” said Joanne Harris, a lifelong Virginian and the daughter of Bedford, Va., farmers. “It hits me in the gut that two hours from our house same-sex couples in Maryland and D.C. can marry. I have a serious medical condition and we’ve had to spend lots of money to try to make sure that Jessi can make decisions for me if there were ever a crisis.”

"I’m an Air Force veteran, and if Virginia would just respect our marriage from D.C., it would ensure that my spouse and family could access all the benefits I’ve earned," said Christy Berghoff, from Winchester. "I’ve been with Victoria for almost a decade now; and it hurts to have our home state say we are not married when it recognizes marriages entered into by different-sex couples who may have only recently met.”

“More than half of the people of Virginia believe all Virginians should have the freedom to marry the person they love, said Claire Guthrie Gastañaga, Executive Director of the ACLU of Virginia. “Every day that same-sex couples in Virginia are denied the freedom to marry, the government sends a message that they are second class citizens and their families are not worthy of equal dignity and respect.”

The press release on the filing of the suit is here.  The complaint itself can be found here.  The following are some excerpts from the complaint:

The Named Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 on behalf of themselves and the Plaintiff Class, seeking declaratory and injunction relief for the violation of Plaintiffs’ rights under the Fourteenth Amendment to the United States Constitution caused by the exclusion of same-sex couples from the freedom to marry and from recognition of the marriages some Plaintiffs have entered into in other jurisdictions under the law of the Commonwealth of Virginia (“Commonwealth” or “Virginia”).

Marriage plays a unique role in society as the universally recognized and celebrated hallmark of a couple’s commitment to build family life together.   It confers upon couples a dignity and status of immense import.  Plaintiffs have formed committed, enduring bonds equally worthy of the respect afforded by the Commonwealth to different - sex couples through marriage. Yet, the Commonwealth, without any adequate justification, has enacted an unprecedented series of statutory and constitutional amendments to single out lesbian and gay Virginians by excluding them from the freedom to marry, or by refusing to recognize their existing marriages from other jurisdictions, based solely on their sexual orientation and their sex.

The marriage ban inflicts serious and irreparable harms upon same sex couples and their children.   Joanne Harris and Jessica Duff are unmarried, and wish to marry for the same reasons as different - sex couples to publicly declare their love and commitment before their family, friends, and community, and to give one another and their son J. H. D. the security and protections that only marriage provides.   Christy Berghoff and Victoria Kidd have married in another jurisdiction, but are treated as legal strangers in the state they call home a painful invalidation of their relationship that also deprives them and their daughter L. B. K. of  the protections that a legally recognized marriage most securely provides.

[T]he Commonwealth’s exclusion of  same - sex couples from marriage and refusal to recognize their valid marriages from other jurisdictions and Defendants’ enforcement of the marriage ban violate the due process and equal protection guarantees of the Fourteenth Amendment to the United States Constitution.

As the Supreme Court has made clear, the law cannot, directly or indirectly, give effect to private biases.   Liberty and equality, not moral disapproval, must be the guiding framework for a state’s treatment of its citizens.

Excluding same - sex couples from marriage does nothing to protect or enhance the rights of different - sex couples. Different - sex spouses will continue to enjoy the same rights and status conferred by marriage regardless of whether same - sex couples may marry, unimpaired by the acknowledgment that this freedom belongs equally to lesbians and gay men.

The Commonwealth’s interest in child welfare is affirmatively harmed rather than furthered by the exclusion of same - sex couples from marriage. That exclusion injures same - sex couples’ children without offering any conceivable benefit to other children.  . . . Other courts have found, after trials involving expert testimony, that there is no rational basis for favoring parenting by heterosexual couples over gay and lesbian couples.

 

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The Arrogance of the Self-Anointed "Gay Elite"

Recently in connection with the challenge to Virginia's anti-gay marriage constitutional amendment I noted in a post here and on the Bilerico Project the following observation:

This post would not be complete without acknowledging some of the blow back I have received from previous posts about the case.  It seems that some of what many of us living in "red states" view as the self-anointed "gay elite" are displeased that the plaintiffs proceeded to file their lawsuit rather than wait for permission, if you will, from Lambda Legal, the ACLU and others.  These the "gay elites" primarily sit safely in gay friendly jurisdictions like New York and Washington, D.C., and lecture those faced with no rights or legal protections, give them a pat on the head and then tell Virginians and others "be patient, we know best."   One must not forget that when the Hollingsworth v. Perry suit was filed, these same elites argued against the case being brought.  Ted Olsen and David Boies proved them wrong.

Well, the blow back has continued and I have received more slings and arrows for having dared criticize Lambda Legal and the ACLU.  I was even accused of harming the LGBT community by my comments.  These attacks come, of course, from non-elected individuals serving on self-perpetuating boards that purport to represent the LGBT community, yet they really want no input whatsoever  from the community other than (i) writing check after check to their organizations and/or (ii) showing up for events that they tell us to be at.  They expect servile obedience even when their organizations may have achieve little or nothing of substance to show for all of the funds they receive.

Some of the attacks I have ignored.  Others I have not held my tongue - I know readers don't find that a surprise - and have laid out my personal peeves with Lambda Legal and the ACLU.  For newer readers, I will set out why I am not always enamored with these organizations although they have indeed done a great deal of good work.   Much of my complaints track to the case of Moore v. The Virginia Museum of Natural History which involved an employee of a state operated museum who was fired for being gay.   Other posts on the case are here, and here and here.   The case went to argument before the Virginia Supreme Court where my former law school class mate and now Chief Justice, Cynthia Kinser seemed most unhappy - outraged might be a better term - that my client had not simply disappeared rather than fight the wrongful discharge.  Not surprisingly, the Supreme Court refused to take the appeal.

Throughout this case, I literally begged for help from Lambda Legal and the ACLU.  Sadly, viewing themselves as demi-gods who are arbiters of the fate of others, neither organization provided any assistance.  My client was just supposed to crawl away in defeat since the case wasn't in a ideal posture apparently to gain their interest.  In the end, the only help I received was from an attorney in the D.C. office of the ACLU who helped me on her own personal time.  I will always be grateful to her and her ability to see that every member of the LGBT community deserves to be represented and to have a fighting chance. Would that more individuals at Lambda Legal and the ACLU did not view most of us as disposable goods.

To my attackers, I invite them to compare what they have done with what I have done striving to make things better for our community here in Virginia and across America.  Sometimes holding one's tongue is not in the best long term interests of our community.  Sycophants are a dime a dozen.  It goes without saying that I will be seriously reconsidering my financial support for some organizations.

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Bostic, et al v. Robert McDonnell, et - A Challenge to Virginia's Gay Marriage Ban

Last week I wrote about a challenge to Virginia's gay marriage ban that was filed in the U. S. District Court for the Eastern District of Virginia - Norfolk Division, which is sometimes known as the "rocket docket" because the Court is known for moving lawsuits along and not tolerating dilatory games by defense counsel.  Today, I was able to secure a copy of the complaint via my law firm PACER account.   The basic players in the case are the plaintiffs, Timothy B. Bostic, a Professor at Old Dominion University and his partner, Tony C. London, a successful Norfolk area realtor.  They have been a couple for over 25 years.  The defendants are Defendants are Robert F. McDonnell, the Governor of the Commonwealth of Virginia, anti-gay zealot, Kenneth T. Cuccinelli, the Attorney General of the Commonwealth of Virginia, and George E. Schaefer, III, the Clerk of the CircuitCourt for the City of Norfolk, whose office refused to issue a marriage license to the plaintiffs.

In the wake of the ruling in United States v. Windsor on June 26, 2013, the complaint not surprisingly alleges that Virginia's anti-gay marriage (i) ban deprives the plaintiffs of due process and equal protection under the United States Constitution - which trumps the Virginia Constitution even though Ken Cuccinelli doesn't get that basic fact - and (ii) was motivated by discriminatory intent and anti-gay animus.  The suit also seeks relief against the defendants under 42 U.S.C. § 1983.   It is not without irony that the Complaint leads off with a reference to Loving v. Virginia in which Virginia was taken to the woodshed and whipped for its anti-miscegenation law that did to mixed race couples what the Marshall-Newman Amendment sought to do to gay couples.  Here are excerpts from the complaint:

More than 30 years ago, the Supreme Court of the United States recognized that "[m]arriage is one of the 'civil rights of man,' fundamental to our very existence and survival." Loving v. Virginia, 388 U.S. 1,12 (1967). But today, as a result of both state statute and the state constitution, the Commonwealth of Virginia denies its gay and lesbian residents access to marriage. Article I, §15-Aof Virginia's Constitution provides that "only a union between one and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions." Va. Const., Art. I, § 15-A. 

Similarly, Va. Code § 20-45.2 states that a "marriage between persons of the same sex is prohibited" in the Commonwealth of Virginia. This code section also states that "[a]ny marriage entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created by such marriage shall be void and unenforceable." Virginia law also prohibits civil unions among same-sex individuals. Va. Code § 20-45.3. 

This unequal treatment of gays and lesbians denies them the basic liberties and equal protection under the law that are guaranteed by the Fourteenth Amendment to the United States Constitution.

This action, brought pursuant to 42 U.S.C. § 1983, seeks (1) a declaration that Virginia Code §§ 20-45.2 and 20-45.3 and Article I, § 15-A of the Virginia Constitution provisions that expressly deny gay and lesbian individuals the opportunity to marry civilly and enter into the same officially sanctioned family relationship with their loved ones as heterosexual individuals— are unconstitutional under the Due Process and Equal Protection clauses of the Fourteenth Amendment to the United States Constitution; and (2) a preliminary and permanent injunction preventing Defendants from enforcing these provision against Plaintiffs.

Gay and lesbian individuals have faced a long and painful history of societal and government-sponsored discrimination in this country. Although their sexual orientation bears no relation to their ability to contribute to society, gays and lesbians have been singled out for discriminatory treatment. They have faced unconstitutional criminal penalties for private sexual conduct between consenting adults, harassment, hate crimes, and discrimination in employment and many other areas. They have even been the subject of laws stripping them of rights afforded to all other citizens.

Virginia law, unlike the law in many other states, even prohibits gay and lesbian couples from entering into civil unions. Virginia law also fails to honor the laws of thirteen other states and the District of Columbia, which allow for same-sex marriage, by providing that such marriages are"void in all respects" and by stipulating that any contractual rights from such valid marriages "are void and unenforceable" in the Commonwealth of Virginia.  The inability to marry denies gay and lesbian individuals and their children the personal and public affirmation that accompanies marriage. The inability to marry also deprives same-sex couples of numerous benefits associated with marriage . . . 

The avowed purpose ofthis statutory and constitutional regime is "to impose a disadvantage, a separate status, and so a stigma upon", those who seek to enter into same-sex marriage in Virginia. See United States v. Windsor, 570 U.S. (2013)(slip opinion at 21).

As a result of both state statute and state constitutional law, Plaintiffs are barred from marrying the individual they wish to marry, cannot enter into the separate-but-unequal bond of a civil union, and cannot marry in another state and have Virginia recognize the benefits of such unions.

The disadvantage these laws impose upon gays and lesbians is the result of  disapproval or animus against a politically unpopular group. Accordingly, these laws violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by casting gays and lesbians into disfavored legal status and categorizing them as "second-class citizens."

The full complaint can be found on a companion post at The Bilerico Project.   I would encourage readers to review the full Complaint.  At trial, the plaintiffs' counsel should be able to introduce a great deal of evidence on the anti-gay animus that motivated Virginia's gay marriage bans, including statements by Ken Cuccinelli, Del. Bob Marshall (from whom the amendment took its name) and others.

This post would not be complete without acknowledging some of the blow back I have received from previous posts about the case.  It seems that some of what many of us living in "red states" view as the self-anointed "gay elite" are displeased that the plaintiffs proceeded to file their lawsuit rather than wait for permission, if you will, from Lambda Legal, the ACLU and others.  These the "gay elites" primarily sit safely in gay friendly jurisdictions like New York and Washington, D.C., and lecture those faced with no rights or legal protections, give them a pat on the head and then tell Virginians and others "be patient, we know best."   One must not forget that when the Hollingsworth v. Perry suit was filed, these same elites argued against the case being brought.  Ted Olsen and David Boies proved them wrong.

As for the legal team representing the plaintiffs, they are top notch litigators and are from an "A(v) rated law firm.   The senior partner in the firm, Thomas Shuttleworth, is admitted to practice before the U. S. Supreme Court and has been ranked among the best lawyers in America.  A number of the more senior partners in the firm were former law partners with me years ago and I can say from first hand experience (i) they are superb trial attorneys, and (ii) they play to win.    There is never any guaranteed result in litigation, but the plaintiffs have chosen very competent attorneys.  If Lambda Legal and others are pissed off, they should have been ready to file in Virginia once the ruling in Windsor was handed down.

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Gay Couple Files Lawsuit Challenging Ohio' Gay Marriage Ban

In follow up to my post on Lambda Legal (and other self-anointed "gay elites") perhaps being in a snit over the federal law suit filed last week by a Norfolk, Virginia, now a couple in Ohio has filed a federal lawsuit in that state.  Obviously, if Lambda Legal and the ACLU want to monopolize the filing of such lawsuits, they need to get on the ball.  ABC 5 News reports on the new suit in Ohio.  Here are details:

CINCINNATI - Two Cincinnati men who married in Maryland last week filed a federal lawsuit Friday claiming it is unconstitutional for Ohio not to recognize their marriage.  While the marriage of John Arthur and Jim Obergefell of Over-the-Rhine is legal in Maryland, it is not in Ohio.

The suit, filed by the couple, states the way the law treats marriages between opposite-sex couples is unfairly different from the way it treats marriages between same-sex couples.  "It's blatant discrimination," said the couple's attorney Al Gerhardstein. "It's a denial of equal protection."

The suit points to an example of a marriage between first cousins. In Ohio, it is illegal. But if first cousins go to another state and marry where it is legal, Ohio will recognize their out of state marriage as valid.

"Equal protection demands that opposite-sex couples and same-sex couples should be treated the same," Gerhardstein said in a release. "John and James were validly married in Maryland. If they were an opposite sex couple, Ohio would recognize their marriage. Being a same-sex couple is no longer a good enough reason to deny them equal rights."

While Lambda Legal has its reasons for having lawsuits coordinated, as I noted before, there is growing frustration in states like Virginia where those who some call the "gay elites" sit safely in gay friendly jurisdictions like New York and Washington, D.C., and lecture those faced with no rights or legal protections, give them a pat on the head and then tell Virginians and others "be patient, we know best."  One must not forget that when the Hollingsworth v. Perry suit was filed, these same elites argued against the case being brought.

The reality in Virginia is that only federal court rulings will bring marriage equality in the near term since the Virginia GOP has gerrymandered General Assembly districts in such a manner that public approval of gay marriage can and will be flouted as the Virginia GOP continues to prostitute itself to the Christofascists.

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Are Some Activists in a Snit Over Norfolk Gay Marriage Lawsuit?

One of the frustrations of living in a state like Virginia where LGBT citizens have literally zero non-discrimination protections and where our life commitments and relationships have zero legal recognition is hearing gay activists who usually reside in liberal states lecture us about the need to be patient.  That's easy to say when one is safely residing in New York or other states with employment protections, partner benefits and full marriage rights.  A comment I received on my post about the federal lawsuit filed by friends last week raises the issue whether or not some are pissed off that the couple who filed the lawsuit did not dutifully wait for permission from "those who know best."   Yes, it is important that any lawsuits be framed in the best manner possible.  At the same time, however, the professional activists at Lambda Legal and the ACLU need to realize that some of us are tired of waiting for someone else to tell us we have permission to demand equality.   The following are excerpts from Lambda Legal on the as yet un-filed lawsuits that are supposed to be coming in Virgina and other states:

We have chosen the states we have because, after in-depth analysis, we have concluded they have the best chances of yielding good results. In some parts of the country, a lawsuit may be ill-advised because existing appellate precedent may make it hard to win. It is not that we care less about certain states or think that people living in those states are less deserving of the same rights as everyone else. Instead, we are being strategic in trying to rack up wins and avoid losses.

We have seen time and again that filing cases in states where the odds are stacked against victory can create adverse precedent and interfere with momentum, making future cases harder to win. Positive momentum will help us reach nationwide success sooner, and that’s why we are concentrating on jurisdictions where we think the chances are best to win.

The impatience that people feel is very understandable - we feel impatient too! It is manifestly wrong that same-sex couples in 37 states are still denied a basic and fundamental freedom that others enjoy, and the harms from being excluded from the tangible and intangible rights and responsibilities of marriage are serious and manifold.

They are impatient too?  I think not.  Yes, I am being harsh, but when I represented Michael Moore who was fired from the Virginia Museum of Natural History for being gay, I did not receive ANY assistance form Lambda Legal.  That's right none whatsoever.  In fact, the only assistance I received was from an attorney in the D.C. office of the ACLU.  If you want to play God, then do something.  Don't just sit back in your liberal state in your ivory tower while the rest of us are left in a fourth class citizenship status.

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