- The Washington Times - Monday, September 30, 2013

The legal team that helped overturn California’s ban on same-sex marriage joined a lawsuit Monday seeking to do the same in Virginia.

Ted Olson and David Boies will join a lawsuit filed in July seeking to overturn Virginia’s constitutional ban on gay marriage.

The lawyers, working with the American Foundation for Equal Rights, in a brief filed in federal court Monday invoked the end of the state’s ban on interracial marriage to make their case.

“Just as the Supreme Court vindicated the foundational principles of freedom and equality that were being trammeled by Virginia’s anti-miscegenation laws nearly 50 years ago,” they wrote, “this Court now should act to halt Virginia’s policy, enshrined in its constitution and its laws, of walling off gay men and lesbians from the institution of marriage.”

Gay marriage is currently legal in the District, Maryland and 12 other states. The U.S. Supreme Court, in addition to turning back California’s Proposition 8 that banned gay marriage in June, declared a key part of the federal Defense of Marriage Act unconstitutional, paving the way for same-sex couples to receive the same federal benefits as heterosexual couples.

Years before working together to strike the California gay-marriage ban, the high-profile lawyers opposed each other after the disputed 2000 presidential election. Mr. Olson, solicitor general of the United States during the George W. Bush administration, worked on behalf of Republicans while Mr. Boies served as lead counsel in former Vice President Al Gore’s challenge to the Florida election results.

Their work toward marriage equality in Virginia comes almost seven years after Virginia adopted a constitutional amendment defining marriage as between one man and one woman. The amendment was supported by a 57 percent to 43 percent popular vote.

But a recent NBC/Marist poll showed that 54 percent of registered voters in the state now support gay marriage, compared to 38 percent who oppose it and 8 percent who are uncertain.

The Virginia case involves four plaintiffs. Timothy Bostic and Tony London applied for a marriage license from the Norfolk Circuit Court Clerk on July 1, but were denied. Carol Schall and Mary Townley, who have lived in Virginia since 1982, were married in California in 2008 and want their marriage to be recognized in the commonwealth.

Attorney General Kenneth T. Cuccinelli II, the Republican gubernatorial candidate, personally opposes gay marriage but has said it’s the responsibility of his office to uphold the law. He said during a debate last week that he would maintain that position if he is elected governor.

“I understand and respect the fact that this is a sensitive issue to a lot of Virginians,” Mr. Cuccinelli said. “I respect Virginia’s history. And this is part of it now. It may change in the future. But right now, the next governor’s obligated to defend our constitution. I intend to do that.”

Mr. Cuccinelli’s opponent, Democrat Terry McAuliffe, has voiced support for same-sex marriage and has vowed that the first executive order he signs as governor would be one to ban discrimination based on sexual orientation in the state workforce.

Mr. McAuliffe said during last week’s debate that he supports marriage equality and if a bill on the issue got through the General Assembly and to his desk as governor, he would sign it. He said afterward that he was speaking in general terms, since constitutional amendments are not signed by the governor.

“What I’ve been talking about is issues that come to me that sign for equal rights, equal opportunity,” he said. “As I’ve always said, what I want to do as governor is sign pieces of legislation for equal rights for all [of] Virginia’s citizens.”

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