The ACLU and Lambda Legal plan to file a lawsuit in federal court on Thursday to overturn Virginia’s constitutional amendment barring same-sex marriage.
Officials were tight-lipped this week on details of the pending legal battle, but their plans reflect what groups in other states are doing on behalf of Out for Freedom, a nationwide effort to promote same-sex marriage.
Officials at the American Civil Liberties Union of Virginia announced their intent to file the legal challenge in early July. At the time, ACLU of Virginia Executive Director Claire G. Gastanaga said a team of lawyers would be arguing that the statutes violate the federal constitutional guarantee of equal protection.
“Thousands of Virginia couples are already living the deep commitment associated with marriage, without legal recognition of their relationships,” Ms. Gastanaga said. “They and their children deserve the legal protections that come with state-recognized marriage.”
Seven years ago, Virginia voters approved a constitutional amendment that defined marriage as between a man and a woman. Virginia also does not recognize gay marriages performed in other states.
The push toward more states recognizing same-sex marriage comes after the Supreme Court’s decision in June to overturn part of the 1996 federal Defense of Marriage Act (DOMA). The decision struck down a central provision, ensuring that legally married gay couples will be treated the same as opposite-sex married couples in federal programs. A second opinion essentially struck down California’s 2008 Proposition 8 voter initiative banning gay marriage, but the decision was far more limited, focusing on the lack of legal standing for those arguing to preserve the voter initiative.
Supporters of traditional marriage in the Old Dominion have not commented on whether the lawsuit will be successful, but they pointed to historical polling and past election results as examples of Virginians’ support of traditional marriage and their loyalty to lawmakers who uphold related legislation.
“Virginia retained its freedom to define marriage even after the Supreme Court’s decision,” said Jeff Caruso, executive director of the Virginia Catholic Conference.
While he would not comment on the prospective lawsuit, he said that if any legislative efforts are put forward to undo the amendment, “we would be assertively opposed to those efforts.”
Carl Tobias, a professor at the University of Richmond School of Law, said the way in which Supreme Court Justice Anthony M. Kennedy wrote the 5-4 ruling will be the key to arguing against the constitutionality of Virginia’s marriage ban.
“I think it speaks in terms of equality in a way that would allow the plaintiffs to make the argument that those kinds of bans, whether by constitution or legislation, violate equal protection,” Mr. Tobias said. “There’s language in the DOMA opinion that could be interpreted to say that it’s unconstitutional.”
The announcement also came at the same time that gay-rights supporters said they would also be looking to challenge the laws on the books in Pennsylvania and North Carolina.
Gay couples in Pennsylvania have filed a federal lawsuit to overturn the state’s anti-gay marriage law; in North Carolina, the ACLU is seeking to overturn the constitutional marriage amendment that voters approved in May 2012.
In New Jersey and Illinois, the ACLU and Lambda Legal are asking state courts to throw out the states’ civil-union systems. They argue that since the U.S. Supreme Court’s June ruling, gay couples in civil unions are at a clear legal disadvantage compared to their married peers..
A ruling in the Illinois lawsuit could come as soon as Tuesday, when Cook County Circuit Court Judge Sophia Hall holds oral arguments on the case, Darby v. Orr.
In Kentucky, Greg Bourke, a former Boy Scout leader, and partner Michael DeLeon also have filed a federal lawsuit against the state, saying Kentucky should recognize their Canadian marriage. The men, who have two children, are “treated as legal strangers in their home state of Kentucky,” said their Louisville lawyers, Dawn Elliott and Shannon Fauver.
And Rhode Island and Minnesota are set to join 11 other states and the District in recognizing same-sex marriages.
• Cheryl Wetzstein contributed to this report.