Virginia AG Herring, Attorneys Boies, Olson Optimistic After Today’s Same Sex Ban Challenge

Virginia Attorney General Mark Herring.
Virginia Attorney General Mark Herring.

After a two-hour hearing in the federal Eastern District of Virginia this morning, key legal figures standing on the side of overturning Virginia’s ban on same-sex marriage emerged and in a telephone conference call with reporters expressed optimism that their case was strongly made before Judge Arenda L. Wright Allen, noting that the judge said that her ruling will come “soon.”

With Virginia’s new attorney general, Mark Herring, having found last week that Virginia’s ban is unconstitutional, was in attendance for today’s hearing, and the state’s solicitor general Stewart Raphael argued that position before the judge, along with now famous team of Ted Olson and David Boies, the attorneys normally from opposite ends of the political spectrum who effectively began the cascade of legal rulings in support of same-sex marriage with their efforts to overturn Proposition 8 in California.

Boies and Olson both stressed in the conference call that Virginia’s current ban is harmful not only to adult gay couples, but also to their children, while there is “no advantage and no legitimate state interest” that can be found in maintaining the ban.” As usual, they said, there was “no convincing or rational argument to fence gay people off from their basic civil rights.”

“All we heard,” Boies said, “were the same ‘traditional marriage since the beginning of time’ arguments that were the same used to justify a ban on interracial marriage in Virginia.”

Although the case will undoubtedly be appealed if the judge rules in favor of same-sex marriage, that appeal would go to the Fourth Circuit Court of Appeals, where it could result in a ruling that would impact all the southern states covered by that court, spreading the ruling to those states, as well.

The anti-gay marriage Family Foundation, which was on the schedule to present as a friend of the court today did not appear.

The two long-term relationships that brought the suit — all four were in the courtroom today and made comments afterwards — may be able to get married right away if the judge also grants a preliminary injunction to that effect, but Boies and Olson were not willing to speculate at this stage how long it would be before same-sex couples could begin to get legally married in Virginia.

A second challenge to the state’s ban is in the Western District of Virginia and will proceed apace. Olson and Bois are not involved in that one, but they said the legal counsel in it is “excellent.”