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The complaint states that the inability to marry strips same-sex couples of numerous benefits.
Tuesday, July 23, 2013
A gay couple from Norfolk has filed a civil lawsuit in federal court against Gov. Bob McDonnell, Attorney General Ken Cuccinelli and George Schaefer, Norfolk’s Circuit Court clerk, because they were denied a marriage license.
The complaint, filed July 18 at the U.S. District Court in Norfolk, states that Timothy Bostic, a professor of humanities at Old Dominion University, and his partner, Tony London, a U.S. Navy veteran and real estate agent, sought to obtain a marriage license at the Circuit Court in Norfolk, but were turned down because of the 2006 amendment to Virginia’s constitution that defines marriage as between a man and a woman.
The plaintiffs, who are “gay individuals in a long-standing committed relationship” since 1989, according to the complaint, applied for the license on July 1. That was just five days after the U.S. Supreme Court struck down section 3 of the federal Defense of Marriage Act, which prevented gay couples from receiving a range of federal benefits that are generally available to married people.
The Supreme Court’s ruling does not overrule the state’s same-sex marriage ban, but legal experts predicted that it would open doors to future lawsuits by gay Virginians.
Cuccinelli spokesman Brian Gottstein said Tuesday that the attorney general’s office generally doesn’t comment on pending litigation. Schaefer said in an email that he was not able to comment because he had not been served yet.
London and Bostic also did not comment Tuesday, citing a pending consultation with their lawyers. Their complaint argues “unequal treatment of gays and lesbians” that denies them “the basic liberties and equal protection under the law that are guaranteed by the Fourteenth Amendment to the United States Constitution.”
For these reasons, the couple asked the federal court to “enjoin, preliminarily and permanently, all enforcement of statutes that seek to exclude gays and lesbians from access to civil marriage and civil union.”
Bostic and London also argue that the inability to marry deprives same-sex couples of numerous benefits associated with marriage, including marital, disability and survivor’s benefits under the federal Social Security system, naval disability benefits, favorable tax treatment under Virginia and federal law for income and estate taxes, federal Medicaid benefits and Veterans Affairs benefits.
“All of these benefits are not available to plaintiffs and other same-sex couples in Virginia, but would be available to same-sex couples who marry under state laws authorizing such benefits,” the complaint says.
Quoting Justice Anthony Kennedy’s recent opinion on the DOMA ruling, the avowed purpose of Virginia’s marriage amendment, the suit continues, is to “impose a disadvantage, a separate status, and so a stigma upon” those who seek to enter into same-sex marriages in the commonwealth.
Citing the U.S. Supreme Court’s 1967 Loving v. Virginia ruling, which allowed for mixed-race couples to marry, Bostic and London state that marriage is a supremely important social institution, and the “freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”
The American Civil Liberties Union of Virginia announced two weeks ago that it also would file suit in federal court to challenge Virginia’s 2006 constitutional amendment banning same-sex marriage.
ACLU of Virginia Executive Director Claire Gastanaga said Tuesday that she was aware of the Bostic/London lawsuit but did not want to comment.
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