Author: Lisa Provence

For the past few years, André Hakes and her partner, Catherine Gillespie, have trooped to the Charlottesville clerk’s office on Valentine’s Day and requested a marriage license. And each time, they’ve been denied that piece of paper that heterosexuals take for granted.

This Valentine’s Day, they’re going to both Charlottesville and Albemarle clerks’ offices to make their request. “We wouldn’t miss it,” said Hakes, who’s been with Gillespie for 18 years. But there’s something different in the air from a year ago. For one, the couple is now part of a class-action suit filed in Harrisonburg. And on the other end of the Commonwealth, “There’s this case,” said Hakes. “Bostic.”

Bostic v. Rainey was heard February 4 in U.S. District Court in Norfolk, and it could be the “defining case” on the issue of gay marriage, according to UVA constitutional expert A.E. Dick Howard.

“David Boies and Ted Olson give it a national profile,” said Howard, referring to the attorneys who successfully argued against California’s Proposition 8, which banned gay marriage, and who are representing Norfolk couple Timothy Bostic and Tony London, whose own request for a marriage license was shot down last summer.

Adding to the celebrity of the attorneys, said Howard, is Attorney General Mark Herring’s January 23 U-turn in the case, in which he announced he would not defend Virginia’s laws and constitutional amendment banning gay marriage because, said Herring, in his judgment, they violated the U.S. Constitution’s 14th Amendment guarantees of due process and equal protection under the law.

“That makes it more high profile,” said Howard. “It could surface in the Supreme Court next term.”

Howard noted how rapidly the issue of gay rights has shifted in the past 15 years. “In the ’80s, it was taken for granted if states wanted to pass laws punishing sexual orientation,” he said. It was only 10 years ago that the Supreme Court struck down sodomy laws in Lawrence v. Texas. And last year’s decision striking down the federal Defense of Marriage Act—DOMA—stopped short of declaring gay marriage bans unconstitutional, explained Howard.

Close to 50 cases across the country challenge state laws like Virginia’s.

“It reminds me of cases moving up to Brown v. Board of Education,” said Howard. “It’s really exciting. I can’t think of many constitutional developments where the terrain has shifted as rapidly and fundamentally.”

Over in the Shenandoah Valley, Joanne Harris and Jessica Duff were rebuffed when they went to the Staunton clerk’s office seeking a marriage license. They’ve filed suit and are represented by the ACLU and Lambda Legal. Christy Berghoff and Victoria Kidd, who got married in the District of Columbia in 2010, joined that suit, contending Virginia denies them the rights that other married couples have.

On January 31, U.S. District Court Judge Michael Urbanski ruled that the case could be expanded to a class-action suit. That means the estimated 15,000 same-sex couples in Virginia are included as plaintiffs unless they opt out, said ACLU attorney Rebecca Glenberg.

Staunton Clerk of Court, Thomas E. Roberts, a Democrat, was out of the country at press time, and his attorney, Rosalie Fessier, did not return calls from C-VILLE.

Charlottesville Pride president Amy Sarah Marshall will be at the local clerks’ offices on Valentine’s Day. “We’re more electrified,” said Marshall, who lauded Herring’s stance. “There’s a sense of relief that our state is finally living in the 21st century,” she said.

Not everyone applauded the attorney general’s sharp change of direction after having voted for Virginia’s marriage-is-between-a-man-and-a-woman constitutional amendment in 2006. House of Delegates Speaker William Howell called it a “dangerous precedent.”

All of Albemarle’s Republican delegates —Rob Bell, who sought the nomination for attorney general last year, Steve Landes, and Matt Fariss—voted in favor of a bill last week that allows members of the General Assembly to defend a state law when the governor or attorney general choose not to do so.

House Minority Leader and Charlottesville Delegate David Toscano cheered Herring’s decision on the House floor. “History will show he has it correct,” said Toscano.

“One of the things I liked about Mark Herring was he said, we’re not going to be on the wrong side of history because we have in the past,” said Hakes. Herring cited Virginia’s defense of segregation and opposition to interracial marriage in the past.

After the Norfolk hearing, Judge Arenda Wright Allen said, “You’ll be hearing from me soon.”

“I don’t think anything will happen before Valentine’s Day so we can get our license,” said Hakes. “But wouldn’t that be great?”

“If the provision is struck down as unconstitutional,” said Charlottesville Clerk Llezelle Dugger, “I have no problem issuing a marriage license at 12:01am.”

In early January, Delegate Steve Landes drove from his home in Weyers Cave to Crozet, about 38 miles away, to meet with his constituents in the 25th District who live in Albemarle County.

The first three questions he received in the town hall meeting were about redistricting reform.

In the past two national elections and in the most recent state election, a majority of Albemarle voters have cast their ballots for Democrats. Yet three of the county’s four delegates in the House of Delegates are Republicans like Landes with districts that are heavily GOP.

“I think it was clear in the meeting people are frustrated by gerrymandered districts and would like to be represented by people who live where they live,” said one of the questioners, Crozet resident Kim Connolly. “In western Albemarle, when we go over the mountain, it feels different. Why is the western part of the county represented by someone who lives in the Shenandoah Valley? It doesn’t make sense.”

“Our interests and concerns are more like Charlottesville than across the mountain,” echoed Abigail Turner, who lives in Ivy and also attended the meeting. “What I’m concerned about is this county has four delegates. It splits communities of interest.”

And Landes is not the farthest afield Albemarle rep in Virginia’s House of Delegates.

That would be Matt Fariss, a Republican who lives in Rustburg, which is outside Lynchburg in Campbell County. Fariss’ 59th District includes southern Albemarle up to the Charlottesville city limits—72 miles from Rustburg.

“I have never met Matt Fariss,” said Diana Mead, who lives in North Garden, 64 miles from her representative. “As far as I know, he doesn’t come to Albemarle.”

Fariss acknowledges that he’s pretty far from the Albemarle portion of his district. “I do own a farm in Nelson County and when there, I regularly meet some of my constituents at Vito’s Italian Restaurant in Lovingston for lunch,” Fariss responded in an e-mail.

Nationally in the 2012 U.S. House of Representatives races, Democrats won 1.2 million more votes, but Republicans held the House 234-201. That, critics say, is thanks to gerrymandering, which divides a voting district to give advantage to one party, rather than keeping the district geographically compact. And that’s why Albemarle has become the poster child for the practice.

In his January 13 address to the General Assembly, Governor Terry McAuliffe pledged to support redistricting reform. A group dedicated to that effort called One Virginia 2021 is set to launch in February, seven years in advance of the next redistricting.

So why is gerrymandering, which has been around since 1812, suddenly a hot issue?

The gridlock in Congress has a lot to do with the buzz about a topic once considered political inside baseball, explained Bob Gibson, executive director for the Sorensen Institute for Political Leadership. “Increasingly it’s recognized that it’s responsible for some of the gridlock and hard partisan problems infecting Congress and seeping down to Richmond.”

Gibson noted that at least 80 percent of the House of Delegates districts were not competitive in last November’s races. All four of Albemarle’s delegates coasted to unopposed victories.

Incumbents are more worried about being challenged for the nomination in the spring by extreme elements in their own parties, and there’s less incentive to worry about the November election, said Gibson. The lack of competition “drives the parties further apart,” he said.

State Senator Creigh Deeds, whose Bath-to-Charlottesville district is a classic example of gerrymandering, has carried legislation for nonpartisan redistricting for the past 13 years. It typically passes the Senate and dies in a House subcommittee “that meets at 7am and kills it,” said Gibson.

Here’s how redistricting works in Virginia: Following the U.S. Census every 10 years, the legislature redraws the state and congressional districts, which means the party in power votes on how the lines are drawn—and both parties are guilty of drawing lines in their favor. Deeds calls the current system “incumbent protection,” with incumbents picking their voters rather than the other way around.

In states with nonpartisan redistricting, like Iowa, a population-based computer algorithm determines how the lines are drawn. California uses a citizens’ commission with five Democrats, five Republicans, and four people not affiliated with either party.

So how do the four delegates and two senators representing Charlottesville and Albemarle feel about redistricting reform?

“I think we can have a commission that gives advice,” said Delegate Rob Bell, a Republican whose 58th District runs from Scottsville to Free Union, and includes Greene and parts of Rockingham and Fluvanna counties, “I think the legislature should have final approval.”

“The Constitution says it’s the legislature’s responsibility,” said Delegate Landes. “I’ve been very reluctant to move down a path to take it away from them.”

Landes concedes that the concerns of citizens in Albemarle are “a little bit different” from his more conservative constituents in the valley, where the issue of redistricting doesn’t usually come up, but he sees a commonality: “I think people are concerned about government working.”

Rustburg’s Delegate Fariss did not directly address redistricting reform in an e-mail exchange, but said, “I believe it is to my advantage to serve a predominately rural area which I can more relate to and address their issues rather than a more urban or mixed district.”

Delegate and House Minority Leader David Toscano, a Democrat who represents Charlottesville and the Albemarle urban ring, supports redistricting reform, but is not optimistic about its chances for success. “It goes nowhere in the House because House Republicans don’t want to give up the ability to pick their constituents,” he said. The only scenario he foresees for change would be if Democrats moved closer to a majority in the House, which could motivate Republicans toward reform because “they’d worry about what the Democrats would do if they’re in power,” he said.

Deeds perennially proposes a Constitutional amendment establishing a nonpartisan redistricting commission, but he won’t get far this year: Changes to the state constitution have to pass in both houses twice with an election in between, and there won’t be another legislative election until 2015.

State Senator Bryce Reeves, who lives in Fredericksburg, is the only Republican representing Albemarle who voiced support of redistricting reform. “I am a victim of gerrymandering,” said Reeves. “I’m barely in my district by five houses.” Reeves, too, is dubious about the chances of success. “I would love to see that changed, but as long as politics are involved, I don’t know how that will happen.”

Gibson cited a survey showing that 70 percent of Virginians favor redistricting reform. “That has not impressed the delegates who draw the lines,” he said. “They see it as a legislative matter. They want to maintain their power.”

Sorensen Institute co-founder Leigh Middeditch is organizing the group seeking a fairer solution to redistricting called One Virginia 2021. Middleditch has long been an advocate for reform, and in 2011, before the last efforts to use population rather than politics crashed and burned in the House of Delegates, he put the odds of success at “about one in 100.”

How does he handicap the odds for reform before it’s time for the lines to be redrawn again in 2021? “I would not be involved in this,” he said, “if the odds were only one in 100.”