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Va. quickly emerging as key battleground state in marriage equality fight

Sunday, January 19, 2014

RICHMOND, Va. — Almost overnight, Virginia has emerged as a critical state in the nationwide fight to grant gay men and women the right to marry.

This purple state was once perceived as unfriendly and even bordering on hostile to gay rights. That’s changed after a seismic political shift in the top three elected offices, from conservative Republicans to liberal Democrats who support same-sex marriage.

Two federal lawsuits challenging the state’s constitutional ban on gay marriage are moving forward, and a hearing on one of the cases is scheduled for Jan. 30.

ACLU Virginia
Christy Berghoff and Victoria Kidd

ACLU Virginia
Joanne Harris and Jessi Duff

Tony London (left) and Timothy Bostic

With the recent court gains in Utah and Oklahoma, gay rights advocates are heartened by the new mood in Virginia. Symbolically as well, they say, the challenges of the state’s gay marriage ban resonate because of the founding state’s history of erecting a wall between church and state and a landmark U.S. Supreme Court decision involving a Virginia couple and a past taboo: interracial marriage.

“Virginia is one of several important battlefronts where we have the opportunity now to build on the momentum, embrace the public’s movement in favor of the freedom to marry and end the discrimination,” said Evan Wolfson, founder and president of New York-based Freedom to Marry, which seeks to have same-sex marriage bans struck down nationwide.

With the election of Gov. Terry McAuliffe and Attorney General Mark Herring, the state made a hairpin turn away from the socially conservative officeholders they succeeded, particularly Republican Attorney General Ken Cuccinelli, an activist on social issues such as abortion and gay marriage.

Herring had campaigned, in part, on marriage equality, and McAuliffe issued an executive order on inauguration day prohibiting discrimination against state employees who are LGBT.

Democratic legislators, still widely outnumbered in the House of Delegates, have also been emboldened by the shift away from a reliably conservative state. They took immediate aim at the state’s ban on gay marriage, but proposed constitutional amendments face a long road. The earliest voters could see a proposed amendment is in 2016.

The separate lawsuits intended to topple the constitutional ban on same-sex marriage have been filed in federal courts, which are typically speedy in Virginia. The issue could ultimately be appealed to the U.S. Supreme Court.

One lawsuit, filed in U.S. District Court in Harrisonburg, involves two couples from the Shenandoah Valley who claim the state’s ban on gay marriage violates the Constitution’s equal protection and due process clauses. The American Civil Liberties Union and Lambda Legal are representing the plaintiffs.

Camilla Taylor, marriage project director for Lambda Legal, said Virginia’s “intriguing” history on marriage rights played a role in filing the challenge here. A 1967 Supreme Court decision involving a Virginia couple invalidated laws on miscegenation, or interracial marriage.

The case involved Mildred and Richard Loving. The interracial couple had been living in Virginia when police raided their home in 1958 and charged them with violating the state’s Racial Integrity law. They had been married in Washington, D.C.

The Lovings were convicted before ultimately prevailing before the Supreme Court.

“The narrative in Virginia of how marriage plays into Virginia history, why the state was so important nationally for our struggle, is a very significant one,” Taylor said.

The other lawsuit was filed in U.S. District Court in Norfolk on similar constitutional claims. The legal costs in that case are being paid for by the American Foundation for Equal Rights, which was behind the effort to overturn California’s gay marriage ban.

David Boies and Theodore B. Olson, the high-profile legal tandem that brought down California’s prohibition on same-sex marriage, lead the legal team in that challenge. Both cited Virginia’s history when they announced their challenge.

“This case is about state laws that violate personal freedoms, are unnecessary government intrusions, and cause serious harm to loving gay and lesbian couples,” Olson said. “As a Virginian and a conservative, I believe these laws stand against the very principles of our nation’s founding.”

Boies compared their challenge of the state’s gay marriage ban to the Loving case.

“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,” Boies said. “It’s fitting, then, that Virginia be the battleground for another great test of that principal.”

Virginia voters approved the same-sex marriage ban 57 percent to 43 percent in 2006.

A Quinnipiac University poll in July found that 50 percent of registered Virginia voters support same-sex marriage, while 43 percent oppose it. The survey’s margin of error was plus or minus 3.1 percentage points.

“Their hearts and minds have changed,” Wolfson said of Virginians. “That’s exactly why it should not be in the Constitution.”

The lawsuit puts Herring’s office in the position of arguing against a right he championed on the campaign trail. A spokeswoman said “he’s reviewing appropriate legal options.”

Victoria Cobb, president of the conservative Family Foundation of Virginia, said she is concerned about the recent court decisions on gay marriage and Herring’s recalcitrance.

“I’d like to see the attorney general, as the person elected to defend our laws, give a staunch defense of it,” she said. “That’s what the top attorney should be doing .”

The judges presiding in the Harrisonburg and Norfolk challenges are appointees of President Barack Obama.

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25 more reader comments:

  1. Go Virginia…..stop discrimination with your kindness!

    Posted on Sunday, January 19, 2014 at 8:23pm
  2. If Virginia could strike down the amendment banning same-sex marriage, that would make me SO happy.

    Posted on Sunday, January 19, 2014 at 8:28pm
  3. This is one of the many reasons why it is so important to vote and vote straight line Democrat in every election. Given the Republican Party’s redistricting and various voter suppression tactics, make sure your vote is counted!

    Posted on Sunday, January 19, 2014 at 8:29pm
  4. That is the cutest kid I have ever seen! Mommies are cute too. Everyone looks happy.

    Posted on Sunday, January 19, 2014 at 8:31pm
  5. Oh that is the cutest baby!!! :). What lucky moms!!

    Posted on Sunday, January 19, 2014 at 8:33pm
  6. Hopefully Virginia will wake up and treat. All its tax paying citizens equal

    Posted on Sunday, January 19, 2014 at 8:34pm
  7. Things are moving fast in the right direction. However,the only way to ensure equality in all areas for this nation’s LGBTQ community is for new equality legislation at the federal level,or including us in existing federal law,such as The Civil Rights. Act.

    Posted on Sunday, January 19, 2014 at 8:48pm
  8. Let’s hope VA is next!

    Posted on Sunday, January 19, 2014 at 8:51pm
  9. Your friends in Maryland have your back!!! Let’s make it happen!!

    Posted on Sunday, January 19, 2014 at 8:52pm
  10. I’m new to the state of Virginia does anyone know where any rallies will be where I can help out near Gate City?

    Posted on Sunday, January 19, 2014 at 9:13pm
  11. Super

    Posted on Sunday, January 19, 2014 at 9:18pm
  12. Garrett Piersa

    Posted on Sunday, January 19, 2014 at 9:34pm
  13. GO VA !!!

    Posted on Sunday, January 19, 2014 at 9:48pm
  14. Christians REALLY need to accept that this is not a theocracy and keep their biblical stuff out of government and law.

    Posted on Sunday, January 19, 2014 at 9:54pm
  15. Good luck, VA. As an Indiana resident, we are battling our “legislators” from adding a gay marriage BAN to our constitution! Our Speaker of the house has gone so far to say that he will remove committee members (that HE chose) if they don’t vote to push his agenda. Great way to RIG the democratic process. Truly disgusted!

    Posted on Sunday, January 19, 2014 at 10:29pm
  16. You can do it Virginia!

    Posted on Monday, January 20, 2014 at 12:12am
  17. I’m going to stop eating until it passes. Ok not really but can’t wait

    Posted on Monday, January 20, 2014 at 12:32am
  18. I laughed out loud upon reading what you wrote

    Replied on Monday, January 20, 2014 at 4:28am
  19. VIRGINIA! work it.

    Posted on Monday, January 20, 2014 at 12:37am
  20. See I look at this picture and see a child being loved…given the chance to succeed and become a decent han being. Why do people see something to fear and hate? It kills me.

    Posted on Monday, January 20, 2014 at 2:07am
  21. This is great news!

    Posted on Monday, January 20, 2014 at 10:05am
  22. After getting legalization in Utah who knows. I know many here feel we will be one of the last states to legalize due to being so conservative but I would have Utah is probably one of the top conservative states as well.

    Posted on Monday, January 20, 2014 at 2:24pm
  23. that baby is so cute!

    Posted on Monday, January 20, 2014 at 7:48pm
  24. I’m so glad I moved from that awful state. Everything there is illegal.

    Posted on Monday, January 20, 2014 at 8:41pm
  25. the baby is cute

    Posted on Monday, January 20, 2014 at 8:49pm