Family Law Attorney Lisa McDevitt Offers Observations On Virginia Gay Marriage Lawsuit

Fairfax, VA (Law Firm Newswire) September 16, 2013 – A gay Virginia couple has filed a federal lawsuit against state officials because they were denied a marriage license.

Timothy Bostic and Tony London filed the lawsuit July 18, claiming that they were denied a marriage license on July 1, just days after the U.S. Supreme Court struck down the Defense of Marriage Act. Although the Supreme Court’s ruling did not overrule Virginia’s ban on same-sex marriage, legal experts said it provides an opening to challenge it.

“Same-sex marriage is not legal in Virginia, and the Supreme Court’s ruling did not change that,” said Lisa McDevitt, a family law attorney not involved in the case. “However, plaintiffs can now argue that the state is denying them access to federal benefits that they would have if they were married.”

According to the lawsuit, Bostic, a professor at Old Dominion University, and London, a Norfolk real estate agent, have been in a committed relationship since 1989. They claim they were denied a marriage license at the Circuit Court in Norfolk due to Virginia’s 2006 constitutional amendment defining marriage as between a man and a woman.

On June 26, the U.S. Supreme Court overturned Section 3 of the 1996 Defense of Marriage Act, holding that restricting the federal definition of marriage to heterosexual unions was unconstitutional. The court left Section 4 of the Act in place, which allows states to refuse to recognize same-sex marriage.

Bostic and London’s lawsuit asks the court to enjoin enforcement of statutes excluding gays and lesbians from marriage, arguing that by prohibiting same-sex marriage, Virginia deprives couples of numerous benefits that are available to married people, such as Social Security and Medicaid benefits and favorable treatment under state and federal law with regard to income and estate taxes.

The lawsuit cites the U.S. Supreme Court’s recent decision on the Defense of Marriage Act and its 1967 ruling in Loving v. Virginia, which allowed for mixed-race couples to marry. “Marriage is one of the ‘basic civil rights of man,’” Chief Justice Earl Warren wrote in that decision, “fundamental to our very existence and survival.”

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