Lawyers representing a class of same-sex couples in Virginia have moved to intervene in a pending case in the U.S. Court of Appeals for the Fourth Circuit that challenges the constitutionality of the state’s ban on gay marriage.
The proposed intervenors, whose lawyers include a team from Jenner & Block and the American Civil Liberties Union, filed papers in the Fourth Circuit on Feb. 26 in support of their effort to participate in Bostic v. Schaefer.
The class in Harris v. Rainey, certified on Jan. 31, represents all same-sex couples in Virginia—except for the four individual plaintiffs in Bostic. The plaintiffs in the Bostic case have said they “want to prosecute their own case, for their own families, with their own counsel, on their own terms.”
The lawyers in the Bostic case, including Gibson, Dunn & Crutcher partner Theodore Olson and David Boies, chairman of Boies, Schiller & Flexner, successfully challenged Virginia’s prohibition on same-sex marriage. A federal trial judge in Norfolk in February concluded the ban was unconstitutional.
The two cases challenging the state ban have proceeded on parallel tracks since they were filed last summer. The class counsel in Harris said the intent of intervening in Bostic is to expedite the process while protecting the legal interests of the class.
“It would turn the principles of civil procedure on their heads if a litigation brought by four individuals were allowed to effectively preempt through stare decisis the ongoing litigation brought on behalf of all same-sex couples in Virginia. Such a course of action would effectively appoint the Bostic plaintiffs as de facto class representatives without any of the protections or duties of representation,” the legal team in the Harris case wrote in their motion to intervene.
The Harris lawyers said “relegating the Harris Class to joining the merits brief filed by the Bostic
plaintiffs would effectively substitute counsel in Bostic as counsel for the entire class without any of the protections or duties of representation imposed by Rule 23.”
The Fourth Circuit did not immediately rule on the motion to intervene.
Lisa Hoffman is a contributing writer for The National Law Journal.