For the past few years, André Hakes and her partner, Catherine Gillespie, have trooped to the Charlottesville clerk’s office on Valentine’s Day and requested a marriage license. And each time, they’ve been denied that piece of paper that heterosexuals take for granted.
This Valentine’s Day, they’re going to both Charlottesville and Albemarle clerks’ offices to make their request. “We wouldn’t miss it,” said Hakes, who’s been with Gillespie for 18 years. But there’s something different in the air from a year ago. For one, the couple is now part of a class-action suit filed in Harrisonburg. And on the other end of the Commonwealth, “There’s this case,” said Hakes. “Bostic.”
Bostic v. Rainey was heard February 4 in U.S. District Court in Norfolk, and it could be the “defining case” on the issue of gay marriage, according to UVA constitutional expert A.E. Dick Howard.
“David Boies and Ted Olson give it a national profile,” said Howard, referring to the attorneys who successfully argued against California’s Proposition 8, which banned gay marriage, and who are representing Norfolk couple Timothy Bostic and Tony London, whose own request for a marriage license was shot down last summer.
Adding to the celebrity of the attorneys, said Howard, is Attorney General Mark Herring’s January 23 U-turn in the case, in which he announced he would not defend Virginia’s laws and constitutional amendment banning gay marriage because, said Herring, in his judgment, they violated the U.S. Constitution’s 14th Amendment guarantees of due process and equal protection under the law.
“That makes it more high profile,” said Howard. “It could surface in the Supreme Court next term.”
Howard noted how rapidly the issue of gay rights has shifted in the past 15 years. “In the ’80s, it was taken for granted if states wanted to pass laws punishing sexual orientation,” he said. It was only 10 years ago that the Supreme Court struck down sodomy laws in Lawrence v. Texas. And last year’s decision striking down the federal Defense of Marriage Act—DOMA—stopped short of declaring gay marriage bans unconstitutional, explained Howard.
Close to 50 cases across the country challenge state laws like Virginia’s.
“It reminds me of cases moving up to Brown v. Board of Education,” said Howard. “It’s really exciting. I can’t think of many constitutional developments where the terrain has shifted as rapidly and fundamentally.”
Over in the Shenandoah Valley, Joanne Harris and Jessica Duff were rebuffed when they went to the Staunton clerk’s office seeking a marriage license. They’ve filed suit and are represented by the ACLU and Lambda Legal. Christy Berghoff and Victoria Kidd, who got married in the District of Columbia in 2010, joined that suit, contending Virginia denies them the rights that other married couples have.
On January 31, U.S. District Court Judge Michael Urbanski ruled that the case could be expanded to a class-action suit. That means the estimated 15,000 same-sex couples in Virginia are included as plaintiffs unless they opt out, said ACLU attorney Rebecca Glenberg.
Staunton Clerk of Court, Thomas E. Roberts, a Democrat, was out of the country at press time, and his attorney, Rosalie Fessier, did not return calls from C-VILLE.
Charlottesville Pride president Amy Sarah Marshall will be at the local clerks’ offices on Valentine’s Day. “We’re more electrified,” said Marshall, who lauded Herring’s stance. “There’s a sense of relief that our state is finally living in the 21st century,” she said.
Not everyone applauded the attorney general’s sharp change of direction after having voted for Virginia’s marriage-is-between-a-man-and-a-woman constitutional amendment in 2006. House of Delegates Speaker William Howell called it a “dangerous precedent.”
All of Albemarle’s Republican delegates —Rob Bell, who sought the nomination for attorney general last year, Steve Landes, and Matt Fariss—voted in favor of a bill last week that allows members of the General Assembly to defend a state law when the governor or attorney general choose not to do so.
House Minority Leader and Charlottesville Delegate David Toscano cheered Herring’s decision on the House floor. “History will show he has it correct,” said Toscano.
“One of the things I liked about Mark Herring was he said, we’re not going to be on the wrong side of history because we have in the past,” said Hakes. Herring cited Virginia’s defense of segregation and opposition to interracial marriage in the past.
After the Norfolk hearing, Judge Arenda Wright Allen said, “You’ll be hearing from me soon.”
“I don’t think anything will happen before Valentine’s Day so we can get our license,” said Hakes. “But wouldn’t that be great?”
“If the provision is struck down as unconstitutional,” said Charlottesville Clerk Llezelle Dugger, “I have no problem issuing a marriage license at 12:01am.”