New York, April 18, 2014—Virginia’s ban on marriage for lesbian and gay couples violates the U.S Constitution’s due process guarantee, which protects against government interference in fundamental personal decision making, including the choice of one’s spouse, argues the Columbia Law School Sexuality and Gender Law Clinic in an amicus brief filed today with the U.S. Court of Appeals for the Fourth Circuit.
Columbia Law School Professor Suzanne B. Goldberg
, who directs the Sexuality and Gender Law Clinic and is a leading expert on civil rights and constitutional law, is the brief’s primary author. The brief supports the claims of thousands of same-sex couples from Virginia, including Timothy Bostic and Tony London, and Carol Schall and Mary Townley, unmarried couples who each have been together for more than twenty years. (The case is Bostic v. Shaefer.
) Two other couples who brought a separate class action on behalf of all same-sex couples in Virginia have been allowed by the Fourth Circuit to intervene in the Bostic
appeal. These intervening couples represent all same-sex couples in Virginia who are either prevented from marrying in the state or whose legal marriages in other states are not recognized by Virginia. Many of the couples, including some of the named plaintiffs in both cases, are raising children together.
“Virginia’s marriage laws allow near-complete freedom for individuals to choose their spouse, consistent with the Constitution’s due process guarantee—but the state cuts off that protection when it comes to same-sex couples,” said Goldberg. “Virginia’s disrespect for ‘freedom of choice’ in marriage violates the Constitution’s longstanding commitment to protect such deeply personal decisions. The state’s restriction on who an individual can marry is especially striking given that the U.S. Supreme Court has repeatedly rejected states’ efforts to limit the freedom to marry, including Virginia’s restrictions on racial intermarriage in Loving v. Virginia.”
In the brief, Goldberg writes that Virginia’s domestic relations law “generally takes pains to avoid restrictions on whom an individual chooses to marry.” As the brief explains, “an unmarried person who is at least 18 years old and has the capacity to consent can marry any other consenting adult who is not a relative – so long as the chosen partner is also not of the same sex.”
Columbia Law School student Carrie Tirrell ‘15 assisted in research for the brief. Alston & Bird partners Beverlee Silva, Matthew McGuire, and associate Diane Wizig are co-counsel on the brief.
Oral arguments in the case are scheduled for May 13. Read the brief
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Columbia Law School’s Sexuality & Gender Law Clinic
addresses cutting edge issues in sexuality and gender law through litigation, legislation, public policy analysis and other forms of advocacy.