The legal team that successfully overturned California's gay marriage ban is setting its sights on Virginia. Republican Theodore Olson and Democrat David Boies, the lawyers on opposite sides of the 2000 Bush vs. Gore Supreme Court case, are joining a lawsuit filed by two Norfolk residents whose marriage application was rejected and another couple who wed in California, but whose marriage is not recognized by Virginia. The suit is one of dozens filed in state and federal courts in 18 states, following the Supreme Court's decision to strike down DOMA and allow gay marriages in California.
The addition of Olson and Boies to a case in Norfolk will bring more focus to the challenges to Virginia’s ban on same-sex marriages. In 2006, voters in the Commonwealth amended the state constitution to ban such marriages, including civil unions, and to forbid recognition of unions performed elsewhere. Although Virginia’s constitutional amendment was easily approved, recent polling shows a majority of residents favor legalizing same-sex marriage. But both McDonnell and the General Assembly are opposed, and removing the constitutional amendment would be difficult. In Virginia, the constitution can be amended by voters only after a constitutional convention or if a proposed amendment is passed twice by the General Assembly, with an election occurring between the two votes.
The fight for gay rights has earned many victories these past few years: Ending "Don't Ask Don't Tell," overturning the Federal Defense of Marriage Act, reversing California's Proposition 8, and most recently, the IRS ruling that all same-sex couples be treated as married for all federal tax purposes. Even with an obstinate legislature, public opinion is changing in Virginia and the momentum for progress seems to be moving in the right direction. For now though, the fight continues.