Americans for Marriage Equality

State ResourcesVirginia

Status: Marriage equality.

In Bostic v. Schaeffer, two same-sex couples, represented by Ted Olson, David Boies and the American Foundation for Equal Rights, challenged Virginia's marriage ban in federal court. The plaintiffs argued that the ban violated their rights to due process and equal protection under the U.S. Constitution. In January 2014, the Virginia Attorney General changed the state's position in the case, arguing instead that the marriage ban is unconstitutional; however, other government officials remain defendants in the case. On February 13, 2014, the court ruled that Virginia's ban on same sex marriage is unconstitutional; however Judge Arenda Wright Allen stayed her ruling pending an appeal to the U.S. Court of Appeals for the Fourth Circuit.

On March 10, 2014, the Fourth Circuit granted a request by the plaintiffs in Harris v. Rainey (see below) to intervene in the Bostic case.  On May 13, 2014, a three-judge panel heard arguments in the Bostic case, with Ted Olson, James Esseks of the ACLU and Virginia Solicitor General Stuart Raphael arguing against the state amendment on behalf of the four plaintiff couples. Click here for audio of the proceedings:

In Harris v. Rainey, two same-sex couples, represented by the ACLU and Lambda Legal, challenged Virginia's marriage ban as a class action on behalf of all Virginia same-sex couples in federal court. The plaintiffs argued that the ban violates their rights to due process and equal protection under the U.S. Constitution.

The Fourth Circuit ruled on July 28 to uphold the district court's decision striking down the state's ban on marriage equality. Judge Henry Floyd, who authored the opinion for the court, noted that a “wait and see” approach to marriage equality was causing gays and lesbians undue harm and depriving them of their constitutional rights, writing, “inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws.” The defendants appealed the Fourth Circuit's decision directly to the Supreme Court of the United States, which blocked marriages from beginning while the case was appealed. 

On October 6th, the U.S. Supreme Court denied cert to all marriage equality cases pending review, including Virginia’s Bostic case. This action immediately extended marriage equality to the state, with couples applying for marriage licenses only hours after the court’s order.