Marriage Equality USA

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State of Virginia
All in this Region

Current Status

  • Civil marriage equality in effect at the state level since October 2014. (Same-sex couples may legally marry.)
  • 3 November 2014, After Norfolk couple's long court battle, life goes on - By Bill Sizemore with the PilotOnline. RE: the Rainey v. Bostic case (see under LAWSUITS-RESOLVED below). 

HISTORICAL PERSPECTIVE

  • Virginia is the home of the 1967 landmark Loving v. Virginia legal case regarding interracial marriage. This case is a major precedent for the marriage equality legal cases of our time, and plaintiff Mildred Loving is a supporter of the freedom to marry for all. 
  • 6 October 2014, the Supreme Court of the United States did not grant cert for any of 7 marriage cases from 5 states that had submitted petitions asking for review, including Virginia's case, Rainey v. Bostic (see under LAWSUITS-RESOLVED below). This left the prior 4th Circuit Court of Appeals 28 July 2014 ruling standing as valid and legalized marriage equality in Virginia.

Legislation - Pending

None.

Legislation - Enacted

HR 566 (Substitute Amendment) - To replace AG Mark Herring in VA Same-sex Marriage Case

Author/Sponsor: Proposed by the House Committee on Rules
Date Introduced: 18 September 2014 
Date Enacted: 18 September 2014

Description:

  • 18 September 2014, the VA House of Delegates voted to approve a resolution that empowers the speaker of the House to hire outside legal counsel to replace AG Mark Herring in the same-sex marriage lawsuit filed against the state but supported by the AG’s Office. 
  • “House Resolution Number 566, which authorizes the Speaker of the House to employ legal counsel to defend Virginia’s unconstitutional and discriminatory ban on marriage for lesbian and gay couples, is yet another example of how out far of touch the majority of Delegates are with ordinary Virginians,” said James Parrish, executive director of Equality Virginia. “At a time when we should be focusing on building an inclusive and welcoming Commonwealth, it’s a shame that these members are wasting valuable legislative time and resources to double down on discrimination."

Lawsuits - Pending

National Organization for Marriage (NOM) v. United States Internal Revenue Service (IRS)

Case #: 14-2363 (4th Circuit); 1:13cv1225 (JCC/IDD)
Court Level: 4th Circuit Court of Appeals
Date Filed:3 October 2013
Date of Appeal: 15 December 2014
Ruling Date:16 October 2014

Description:

  • 3 October 2013, NOM filed a federal lawsuit against the Internal Revenue Service seeking damages over the allegedly illegal release of the organization’s 2008 confidential tax return, which allegedly went to the Human Rights Campaign (HRC).
  • Prior to filing this suit, in April 2012, In April 2012, NOM filed a formal letter of complaint to the IRS.
  • In May 2013, U.S. Attorney General Eric Holder ordered the FBI to begin a criminal probe into allegations that the IRS had targeted tax-exempt conservative political groups. It was discovered that the IRS actually scrutinized progressive groups more extensively than conservative ones.
  • 3 June 2013, U.S. District Court Judge James C. Cacheris called NOM's allegations "unconvincing" and "unpersuasive," and said that NOM hadn't produced one shred of proof for its allegations. However, Cacheris did allow NOM to proceed with its claims for legal fees and any proven damages resulting from an unintentional leak.
  • 24 June 2013, the IRS agreed to pay NOM $50,000 in damages for an inadvertent leak.
  • 16 October 2014, Judge Cacheris denied NOM's motion for attorney fees and ordered it so.
  • 15 December 2014, NOM appealed the order denying attorney's fees to the 4th Circuit.
  • 22 December 2014, the Briefing Order was issued by the 4th Circuit, with the opening brief due 2 February 2015, and briefing to be complete by the end of March 2015.
  • 4 March 2015, NOM filed its opening brief.
  • 15 April 2015, the United States filed its Response Brief.
  • 29 April 2015, NOM filed their Reply Brief.
  • 5 June 2015, this case was tentatively placed on the oral argument calendar for the session of 15-17 September 2015.

Lawsuits - Resolved

Harris v. Rainey (formerly Harris v. McDonnell)

Case #: 5:13cv00077
Court Level: Federal District Court (4th)
Date Filed: 1 August 2013
Date of Appeal:

Description:

  • Lambda Legal, the ACLU and the ACLU of Virginia filed a federal class action lawsuit in the U.S. District Court for the Western District of Virginia, seeking marriage equality in Virginia as well as an end to Virginia’s refusal to recognize marriages same-sex couples have legally entered elsewhere. The case was filed on behalf of Joanne Harris and Jessica Duff of Staunton and Christy Berghoff and Victoria Kidd of Winchester, and seeks to represent all same-sex couples in Virginia who wish to marry here or who have married in other jurisdictions.
  • 23 December 2013, motions to dismiss clerk denied, and governor dismissed as defendant.
  • 30 September 2013, summary judgment motion filed; fully briefed.
  • 31 March 2014, case stayed pending ruling in Bostic v. Schaefer.
  • 28 July 2014, the 4th Circuit Court of Appeals ruled that the VA ban on marriage equality was unconstitutional in Bostic (see Rainey v. Bostic under LAWSUITS-RESOLVED). And, on 6 October 2014, SCOTUS denied cert to Bostic, which left the July 28th 4th Circuit ruling standing as valid.
  • 29 October 2014, the plaintiffs have asked the district court to enter judgment in their favor. The defendants responded with motions to dismiss the case as moot. State Registrar of Vital Records Janet Rainey's motion and memo in support of her motion; and, the Clerk of the Circuit Court for the City of Staunton's motion and the memo in support of the motion.
  • 18 February 2015, the Harris plaintiffs (plaintiff class) have reached a settlement, per the 13 February 2015 consent order filed in Bostic:
    - Harris Class is entitled to "the benefit of the declaratory and injunctive relief entered [in Bostic] on February 24, 2014 against Defendant Rainey" 
    - Attorneys' fees and costs in the amount of $60,000 are awarded to the Harris Class in full satisfaction of all of their claims for attorneys' fees and costs, whether made in this case or in Harris
    The parties then agreed to a dismissal of the Harris case and the dismissal was so ordered.
McQuigg v. Bostic

Case #: 14-251 SCOTUS
Date Filed: 14 August 2014
Ruling Date: 6 October 2014

Description:

  • As anticipated, Prince William Clerk Michèle McQuigg, represented by Alliance Defending Freedom, submitted an application to Chief Justice Roberts for a stay of the July 28th ruling in Rainey v. Bostic pending appeal.
  • 20 August 2014, SCOTUS agreed to a stay of the July 28th 4th Circuit ruling in Rainey v. Bostic (below). The court’s order stated that the mandate putting the 4th Circuit Court of Appeals’ Rainey v. Bostic ruling in effect, which was scheduled to be issued Thursday morning, is “stayed pending the timely filing and disposition of a petition for a writ of certiorari.”
  • 29 August 2014, McQuigg filed the final petition asking SCOTUS to take up the appeal of the 4th Circuit's marriage case decision. 
  • 4 September 2014, Virginia responded to the McQuigg and Rainey (below, aka Schaefer) SCOTUS petitions, recommending that the cases be consolidated and that cert be granted. 
  • 6 October 2014, SCOTUS declined to take any of the 7 marriage equality cases from 5 states on appeal, including this one. See page 39 of the order. The 4th Circuit's July 28th ruling in Rainey stands.
  • 6 October 2014, 4th Circuit issues Mandate - marriage equality official in Virginia! 
Rainey v. Bostic (formerly Bostic v. Schaefer and Bostic v. Rainey)

Case #: 14-153 (SCOTUS); 14-1167 (4th Circuit Court of Appeals); 2:13cv395 (District Court)
Date Filed: 1 August 2013
Ruling Date: 6 October 2014

Description:

  • In Bostic v. Schaefer, the American Civil Liberties Union (ACLU), the ACLU of Virginia, Lambda Legal, and Jenner & Block, LLP, represent a class of all unmarried same-sex couples in Virginia and all same-sex couples in Virginia who have already married in a different jurisdiction (the "Harris Class"). The class action was originally filed as separate litigation in the Western District of Virginia filed on behalf of Joanne Harris and Jessica Duff and Christy Berghoff and Victoria Kidd as class representatives for all same-sex couples in Virginia who wish to marry here or who have married in other jurisdictions.
  • 24 February 2014, U.S. District Judge Arenda L. Wright Allen issued a sweeping 41-page opinion that mentioned at length Virginia’s past in denying interracial marriage and quoted Abraham Lincoln as she ruled that the state ban on marriage equality is unconstitutional. She stayed her ruling pending appeal.
  • 10 March 2014, the Court set an accelerated briefing schedule and the named plaintiffs in the Harris v. Rainey case (below) were granted intervention on appeal in this case, on behalf of the certified class of all Virginia same-sex couples except for the plaintiffs in the Bostic case.
  • 13 May 2014, oral argument was heard.
  • 28 July 2014, the 4th Circuit Court of Appeals ruled that the VA ban on marriage equality is unconstitutional.
  • This marks the second federal appeals court that has ruled in favor of marriage equality since the historic June 2013 Windsor ruling by the U.S. Supreme Court. (The 4th Circuit Bostic opinion follows the June 2014 rulings by a three-judge panel of the 10th Circuit Court of Appeals in Utah’s Kitchen v. Herbert and Oklahoma's Bishop v.Smith.)
  • The defendants have 21 days to file a request that the case be reheard en banc by the 4th Circuit or to ask for a stay and file an appeal to the Supreme Court of the United States (SCOTUS) - otherwise, in 21 days the ruling goes into effect.
  • 8 August 2014, the Virginia AG filed a  Petition for Writ of Certiorari - asking the the Supreme Court of the United States (SCOTUS) for a review of the case, in other words appealing to SCOTUS. Even though Virginia is asking for review, it is doing so only to get a final ruling from the highest court. The AG took the position in the lower courts that Virginia's marriage ban is unconstitutional and should be struck down. This case will now be captioned Rainey v. Bostic, per SCOTUS convention of leading with the petitioner's name.
  • 13 August 2014, the 4th Circuit denied the request for a stay of their July 28th ruling.
  • 20 August 2014, in McQuigg v. Bostic (above) SCOTUS agreed to a stay of the 4th Circuit's July 28th ruling in this case, thereby overturning the 4th Circuit's August 13th ruling. The court’s order stated that the mandate putting the 4th Circuit Court of Appeals’ ruling in effect, which was scheduled to be issued 21 August 2014, is “stayed pending the timely filing and disposition of a petition for a writ of certiorari.” The court stated that the stay will “terminate automatically” if it denies certiorari in the case (does not choose to hear the case). If it grants certiorari (takes the case), then its stay ends when it “send[s] down … the judgment of this Court.”
  • 27 August 2014, brief in support of certiorari filed.
  • 6 October 2014, SCOTUS declined to take any of the 7 marriage equality cases from 5 states on appeal, including this one. See page 39 of the order. The 4th Circuit's July 28th ruling stands.
  • 6 October 2014, 4th Circuit issues Mandate - marriage equality official in Virginia! 
  • 28 January 2015, the Bostic plaintiffs reached a settlement with the state for attorney fees and costs in an amount of $520,000, to be split between the two law firms that worked on the case: $459,000 to Gibson Dunn and $61,000 to Shuttleworth.
  • 29 January 2015, Va. to pay $520K to lawyers in same-sex marriage case - AP, via WTOP TV.
  • 2 May 2015, Bostic and London get married in Norfolk - By 13News Now Staff. Congratulations and thank you for ALL of your courage and hard work!
Schaefer v. Bostic
  • 22 August 2014, George Schaefer, the Norfolk Circuit Court Clerk defending Virginia's ban on marriage equality in the 4th Circuit appeal, filed a Petition for a Writ of Certiorari with SCOTUS. (Since he is the petitioner, the case name for the sake of his petition is Schaefer v. Bostic.)
  • 4 September 2014, Virginia responded to the McQuigg and Schaefer SCOTUS petitions, recommending that the cases be consolidated and that cert be granted.
  • 6 October 2014, SCOTUS declined to take any of the 7 marriage equality cases from 5 states on appeal, including this one. See page 39 of the order. The 4th Circuit's July 28th ruling in Rainey stands.
  • 6 October 2014, 4th Circuit issues Mandate - marriage equality official in Virginia! 

Ballot Initiatives - Pending

None.

Ballot Initiatives - Passed

None.

Polls

  • 31 March 2014, according to a survey released from Quinnipiac University support for same-sex marriage among Virginia voters remains unchanged since last summer, when the United States Supreme Court struck down parts of the federal Defense of Marriage Act. 50% of voters support allowing gay marriage, with 42% opposed, according to the poll. Women are stronger supporters of same-sex marriage than men with 54% to 38% in favor, the poll finds. Men are divided with 46% supporting and 48% opposed. Marriage equality also remains a partisan issue, with 69% to 22% in support among Democrats. Republicans oppose it 70&% to 23%. Independents support gay marriage 52% to 42%. Poll Details
  • 28 February 2014, Roanoke College surveyed 821 Virginians about marriage equality, and reported 54% support it, 40% do not, with 6% unaccounted for.
  • 26 February 2014, Public Religion Research Institute surveyed 297 VA residents regarding same-gender civil marriage, and reported that 52% support it, 42% do not, and 6% do not know or refuse to answer.