Ted Olson of Gibson Dunn (Photo: Diego M. Radzinschi/ NLJ)
The lawyers challenging Virginia’s ban on same-sex marriage are fighting a request by class representatives, in a separate but parallel case, to join pending litigation in the U.S. Court of Appeals for the Fourth Circuit.
The class, which includes 14,000 same-sex couples in Virginia who want to marry, filed papers in the Fourth Circuit to intervene in Bostic v. Schaefer. The plaintiffs’ lawyers in Bostic, including Theodore Olson and David Boies, on March 3 said they oppose the class motion to intervene.
In Bostic, which is not a class action, a federal trial judge in Norfolk last month struck Virginia’s prohibition on same-sex marriage. The lawyers in the parallel case, Harris v. Rainey, contend the outcome of the Bostic litigation, now pending in the Fourth Circuit, could affect their class action.
“The Bostic plaintiffs have utmost respect for the Harris class representatives and their counsel, and the Bostic plaintiffs enthusiastically welcome their support,” wrote Olson, co-chair of the appellate and constitutional law group at Gibson, Dunn & Crutcher. “But the Harris class’s motion to intervene on appeal inescapably risks multiplying and delaying these proceedings.”
Olson and the plaintiffs’ team said in their papers that the Harris class, filed in August 2013, “surely will have—indeed, already have had—’their day in court.’” The Harris class, Olson wrote, “can accomplish its objective of ensuring that its perspective is considered, without delaying this appeal, by participating as an amicus curiae.”
The Harris class’s lawyers, including Paul Smith of Jenner & Block, said on March 3 that “the parties opposing intervention have identified no legally cognizable way that they would be prejudiced from allowing the Harris Class to intervene.”
The Fourth Circuit didn’t immediately rule on whether to allow the Harris class to intervene in the pending case.