CHARLESTON, W.Va. -- Three couples suing over West Virginia's ban on same-sex marriage asked a judge this week to declare them the victors in the case."Every day that goes by, these couples and other same-sex couples in West Virginia are harmed, and the time is now for the court to grant equal access to the protections and responsibilities of marriage to these couples and all same-sex couples," plaintiffs' attorney Beth Littrell told the Gazette on Tuesday.On Oct. 1, three couples sued Kanawha County Clerk Vera McCormick and Cabell County Clerk Karen Cole. The couples say that by complying with state law and refusing to issue them marriage licenses, the clerks are unfairly discriminating against same-sex couples, in violation of the due process and equal protection clauses of the 14th Amendment of the U.S. Constitution.The lawsuit says that, by denying the couples marriage licenses, the clerks are denying them benefits such as health insurance, hospital visitation rights, family leave and tax benefits.The motion filed Monday for summary judgment asks U.S. District Judge Robert C. Chambers to find that the plaintiffs should be entitled to a ruling as a matter of law because no facts are in dispute.West Virginia law bans same-sex marriages and does not recognize same-sex marriages performed in other states."West Virginia's marriage ban shares all the hallmarks of irrational discrimination that have been present in prior Supreme Court cases that struck down laws violating even the lowest level of equal protection scrutiny. Even if the court does not apply heightened scrutiny (although it should), none of the likely proffered rationales for West Virginia's marriage ban can withstand constitutional review," the motion for summary judgment states.Lambda Legal, a national gay-rights organization, filed the lawsuit on behalf of the three couples: Casie McGee and Sarah Adkins, and Justin Murdock and William Glavaris, all of Huntington; and Nancy Michael and Jane Fenton, of St. Albans.Last month, West Virginia Attorney General Patrick Morrisey intervened in the lawsuit to defend state law. Attorneys with his office have filed a motion asking Chambers to throw out the lawsuit saying state law doesn't cause them any immediate harm and the couples aren't married, so the fact West Virginia doesn't recognize same-sex marriages from other states doesn't affect them.McCormick's attorney has asked the judge to let the matter be handled through the state's legislative process.
On Tuesday, Elbert Lin, solicitor general with Morrisey's office, asked Chambers to stay the plaintiffs' motion for summary judgment until the motions to dismiss the case are decided and a scheduling conference is held Jan. 6. Otherwise, the state's motion says, Chambers would only have 14 days from when the motion was filed to rule.Since the lawsuit was filed in West Virginia, same-sex couples in Hawaii, Illinois, New Jersey, New Mexico and Utah have secured the ability to marry.In June, the U.S. Supreme Court struck down a key piece of the federal Defense of Marriage Act, ruling that same-sex couples who are legally married are entitled to federal benefits.On Dec. 20, a federal court judge found Utah's ban on same-sex marriage unconstitutional after both parties filed motions for summary judgment and oral arguments were held.Attorneys for the state of Utah argued for "responsible procreation" and "the optimal mode of child rearing."
Morrisey's office hasn't stated what basis his office plans to argue as a reason to exclude same-sex marriage.More often, same-sex marriage cases are being decided on motions, rather than at trial, Littrell said. Chambers could rule on the request for summary judgment alone or schedule a hearing to weigh evidence."If the court decides it needs more evidence or there's a factual dispute, it can deny this motion and we'll move forward to trial. It's possible the state will raise some argument that the court decides it needs to prove," said Littrell, a senior attorney with Lambda Legal.However, "the momentum is swinging for freedom in all 50 states," Littrell said. "With recent decisions in Utah and New Mexico and Ohio ... in those cases the arguments against allowing same-sex couples access to marriage are falling by the wayside and, you know, it seems that it's only a matter of time."Reach Kate White at email@example.com or 304-348-1723.