American Foundation for Equal Rights

U.S. District Court Rules Same-Sex Marriage Ban Unconstitutional


Virginia’s Discriminatory Marriage Laws Are UNCONSTITUTIONAL: Federal District Court Finds in Favor of Plaintiffs in Bostic v. Rainey

AFER-Led Challenge Brings Marriage Equality to the South
District Court: “Virginia law that bars same-sex marriage or prohibits Virginia’s recognition of lawful same-sex marriages from other jurisdictions unconstitutional.”

Norfolk, VA – Today, in a historic decision that continues the national momentum toward marriage equality, the United States District Court for the Eastern District of Virginia ruled in Bostic v. Rainey that Virginia’s ban on marriage for gay and lesbian couples is unconstitutional.  The court held that Virginia’s laws prohibiting gay men and lesbians from marrying—including a provision in the Virginia Constitution that prohibits marriage equality in the state—violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution.

“We have arrived upon another moment in history when We the People becomes more inclusive, and our freedom more perfect,” Judge Arenda L. Wright Allen wrote in her 41 page decision. “The men and women, and the children too, whose voices join in noble harmony with Plaintiffs today, also ask for fairness, and fairness only. This, so far as it is in this Court’s power, they and all others shall have.”

“Through its decision today, the court has upheld the principles of equality upon which this nation was founded,” said Plaintiffs’ lead co-counsel Theodore B. Olson of Gibson, Dunn & Crutcher LLP.  “Virginia’s prohibition on marriage for same-sex couples relegates gay and lesbian Virginians to second-class status.  Laws excluding gay men and lesbians from marriage violate personal freedom, are an unnecessary government intrusion, and cause serious harm.  That type of law cannot stand.”

In November 2006, voters in the Commonwealth amended the state constitution to define marriage as solely between one man and one woman and ban recognition of any legal status “approximat[ing] the design, qualities, significance, or effects of marriage” for gays and lesbians.  Preexisting laws also banned same-sex marriage in Virginia.

“The United States Supreme Court has stated fourteen times that the freedom to marry is one of the most fundamental rights—if not the most fundamental right—of all Americans ,” said Plaintiffs’ lead co-counsel David Boies of Boies, Schiller & Flexner LLP.  “The denial of that fundamental freedom to marry the person you love and be treated with equal dignity and respect seriously harms gay and lesbian Americans and the children they are raising.”

The American Foundation for Equal Rights (AFER) is the sole sponsor of Bostic v. Rainey.

“The court’s decision is clear: where you live should not determine who you can marry,” said AFER executive director Adam Umhoefer. “Everyone—in Virginia and every other state—should have the freedom to dedicate their life to the person they love, and every state should recognize that right equally among all Americans.  Today’s victory gets us one step closer to making that a reality.”

“This is a proud day for Virginia,” said Tom Shuttleworth of Shuttleworth, Ruloff, Swain, Haddad & Morecock, who is also representing the Plaintiffs.  “Because of today’s decision, the Plaintiffs in our case and countless gay and lesbian couples in Virginia are one step closer to being able to exercise the freedom to marry the person they love.”

The Plaintiffs in the case are Tim Bostic, an English professor, and Tony London, a real estate agent, who live in Norfolk and have been together for 24 years.  They are joined by Carol Schall, an autism researcher, and Mary Townley, who also works with special needs youth, from Richmond.  Carol and Mary have been together for 28 years and have a sixteen-year-old daughter.  They obtained a marriage license from the State of California in 2008.

“I am proud to say that today I am equal under the law in my home state of Virginia,” said Plaintiff Tim Bostic.  “Tony and I just want to get married like everyone else can.  Today’s decision gets us one step closer to making that dream a reality.”

“Mary and I have raised a beautiful daughter, own a home, and have careers that allow us to be a part of our community on many levels,” said Plaintiff Carol Schall.  “For us, marriage is about love and commitment and our family having the recognition and protection other families enjoy.  Today’s decision makes us incredibly proud of our state and our country.”

AFER brought together the bipartisan legal team of Olson and Boies to continue the fight for marriage equality through Bostic.  Olson and Boies led the legal team that successfully challenged California’s Proposition 8 through all federal court levels in Hollingsworth v. Perry.  The Supreme Court decision in Perry made permanent the landmark United States District Court ruling that found Proposition 8 unconstitutional and reinstated the freedom to marry for gays and lesbians in California.

The Perry case was the first case involving the right of gay and lesbian Americans to marry ever to be fully briefed and argued before the Supreme Court.  Since the Perry case was decided by the Supreme Court, four states, including Virginia, have removed barriers to marriage equality or legalized marriage for same-sex couples.

Since its founding in 2009, AFER has fought for full federal marriage equality for all Americans.

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About the American Foundation for Equal Rights

Since its founding in 2009, the American Foundation for Equal Rights has fought for full federal marriage equality for all Americans.  As the sole sponsor of the federal constitutional challenge to California’s Proposition 8, AFER brought together bipartisan attorneys Theodore B. Olson and David Boies to secure a victory at the United States Supreme Court that restored marriage equality to our nation’s most populous state.  AFER continues its legacy of fighting for marriage equality for all Americans through Bostic v. Rainey, the federal constitutional challenge to Virginia’s discriminatory and harmful Marriage Amendment. To learn more, visit