Va. same-sex ruling could affect W.Va., advocates say

Proponents of same-sex marriage in West Virginia will closely watch today as the ban on same-sex marriage in Virginia goes before a federal appeals court.

The decision from the 4th Circuit U.S. Court of Appeals in the case will — in some way — impact the federal lawsuit challenging West Virginia’s ban on same-sex marriage.

A federal judge in Virginia struck down Virginia’s constitutional ban on same-sex marriage in February. The decision has been appealed to the 4th Circuit in Richmond, which will hear arguments today.

The 4th Circuit includes West Virginia, Virginia, Maryland, North Carolina and South Carolina. Maryland already allows same-sex marriage.

A ban challenging West Virginia’s ban on same-sex marriage is pending in the U.S. District Court of the Southern District of West Virginia. The three-judge panel’s ruling in the Virginia case will “most definitely” affect the West Virginia case, according to Beth Littrell, lead plaintiff’s attorney in the case filed in West Virginia.

“But to what extent would depend on what the ruling is,” said Littrell, staff attorney for Lambda Legal, a national civil rights organization that filed the lawsuit on behalf of three West Virginia couples.

A ruling by the appeals court, which is expected this summer, wouldn’t necessarily have an immediate impact on the lawsuit in West Virginia.

“Our case would still proceed, but there would be precedent from the Fourth Circuit that the [West Virginia federal] judge would be bound by,” Littrell said.

The precedence the higher court’s ruling will establish is what would impact the lawsuit in West Virginia, said Kay Flaminio, executive director of Fairness West Virginia.

Flaminio, along with representatives from other gay rights organizations in the states represented in the 4th Circuit, held a conference call Monday morning to discuss the case, Bostic v. Schaefer.

“We are confident that between Bostic and Lambda Legal, we are ultimately going to win,” she said.

Littrell said the appeals court could issue a broad ruling, “which would clearly apply” to the case in West Virginia, or, a narrow ruling, which would require attorneys to argue why that ruling should or shouldn’t apply.

A rally in support of same-sex marriage is planned outside of the courthouse today in Richmond.

Virginia Attorney General Mark Herring issued a brief last month in support of the plaintiff’s in the Virginia case. West Virginia Attorney General Patrick Morrisey intervened in the lawsuit that is filed against clerks in Kanawha and Cabell counties. Morrisey is fighting to uphold the marriage ban.

West Virginia law bans same-sex marriages and does not recognize same-sex marriages performed in other states.

U.S. District Judge Robert C. Chambers in Huntington previously threw out part of the plaintiffs’ case, which argued marriage licenses from other states should be recognized in West Virginia. None of the couples suing has marriage licenses from another state so they can’t sue over that issue, Chambers ruled.

Recent polls show 32 percent of West Virginians support same-sex marriage, Flaminio said on the phone call Monday.

“We have a bit of a tougher fight for equality in West Virginia,” she said.

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