Two weeks after the Supreme Court’s landmark ruling on the federal Defense of Marriage Act, the American Civil Liberties Union of Virginia announced that it wants to challenge in federal court Virginia's 2006 constitutional amendment banning same-sex marriage.
“Thousands of Virginia couples are already living the deep commitment associated with marriage, without legal recognition of their relationships. They and their children deserve the legal protections that come with state-recognized marriage,” ACLU of Virginia Executive Director Claire G. Gastañaga said Tuesday.
“There is no rational reason for denying these loving couples the freedom to marry and every reason to grant them the same recognition by civil authorities that opposite-sex couples have,” Gastañaga said.
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The ACLU lawsuit is not surprising given the recent Supreme Court decisions, said Victoria Cobb, president of the Family Foundation of Virginia.
"Make no mistake – this was a major defeat for advocates of same-sex marriage who asked the Supreme Court to find a constitutional right to marriage and impose their definition on fifty states. Same-sex marriage advocates did not receive the constitutional affirmation they were seeking and the ACLU today continues to push for what the U.S. Supreme Court did not grant."
Cobb added: "Marriage redefinition was rejected overwhelmingly by Virginia citizens at the ballot and by the Virginia General Assembly time and time again; and today, the ACLU is attempting to subvert the will of the people through marriage redefinition by judicial fiat."
The Supreme Court last month struck down a key part of DOMA, which denies federal benefits to same-sex married couples married in states that recognize such unions. But states still will make their own decisions on who is legally married.
The justices also effectively undercut California's Proposition 8, which bans same-sex marriage – a ruling that has no bearing on Virginia law.
Lawyers from the ACLU of Virginia will join a team of lawyers from the national ACLU and Lambda Legal – a civil rights organization that focuses on lesbian, gay, bisexual and transgender communities – that will argue that the Virginia constitution and statutes denying the freedom to marry violate the federal constitutional guarantee of equal protection under the law, according to a statement released by the organization.
“Support for the freedom to marry is part of the Virginia ACLU's DNA,” Gastañaga said. “We were founded by the lawyers who brought the Loving v. Virginia case that established the freedom to marry across racial lines, and we hope that by the time of our 50th anniversary in 2019, we will be able to say that we were part of the court case that brought the freedom to marry to all Virginia couples regardless of sexual orientation,” she said.
Equality Virginia, a leading gay-rights group in the commonwealth, welcomed the ACLU’s announcement.
“Since the Supreme Court’s ground breaking ruling on DOMA, it remains unclear what exactly the decision means for loving gay and lesbian couples in Virginia,” said James Parrish, the group’s executive director.
“We applaud and support the actions of the ACLU and Lambda Legal to help bring all of the benefits, rights, and responsibilities that come with marriage equality to every family in Virginia,” Parrish said.
Legal experts predicted that the court’s DOMA ruling would open the door to legal challenges of existing state laws banning same-sex marriage.
Allison O. Larsen, an assistant professor of law at the College of William and Mary, said that there is language in Justice Anthony Kennedy’s DOMA opinion “that will be helpful to activists seeking marriage equality here in the future.”