W.Va. gay marriage suit to await higher court ruling

A federal judge in West Virginia has put a lawsuit challenging West Virginia’s ban on same-sex marriage on hold until a federal appeals court decides a similar Virginia case.

U.S. District Chief Judge Robert C. Chambers entered an order Tuesday that stays the West Virginia case, filed in Huntington by three couples last October, until the 4th Circuit U.S. Court of Appeals decides the Bostic v. Schaefer case from Virginia.

An attorney for the West Virginia plaintiffs said Tuesday that they expected the stay and was only surprised at how long Chambers waited to issue it. District judges in North Carolina and South Carolina have already issued stays in cases challenging those state’s bans on same-sex marriage until the Virginia case is decided.

The judge wrote that “because of the overlap in the issues present” in the case that challenges Virginia’s constitutional and statutory prohibition of same-sex marriage, the case in West Virginia should await the outcome of the Virginia case. The 4th Circuit includes Maryland, North Carolina, South Carolina, Virginia and West Virginia. Maryland already allows same-sex marriage.

At the end of February, a federal judge in Virginia struck down Virginia’s ban. The case was appealed to the 4th Circuit in early March, and a three-judge panel heard arguments in the case on May 13 in Richmond. A ruling is expected this summer.

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

A year ago, last 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. That has prompted a spate of lawsuits challenging state bans on same-sex marriage. On Friday, North Dakota became the most recent state to face a legal challenge to its same-sex marriage ban.

Virginia Attorney General Mark Herring issued a brief in March in support of the people trying to overturn Virginia’s ban. West Virginia Attorney General Patrick Morrisey has intervened in the West Virginia lawsuit, which is filed against clerks in Kanawha and Cabell counties, to uphold the same-sex marriage ban.

“Once the Virginia case went to appeal to the 4th Circuit, it was pretty unsurprising Chambers would wait for a decision,” said Karen Loewy, an attorney with national gay-rights organization Lambda Legal. The group 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.

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

In December, attorneys for the plaintiffs filed a motion for summary judgment asking Chambers to rule in their favor as a matter of law because no facts are in dispute.

“The case has been fully briefed for a month,” Loewy said. “Certainly our hope was that [Chambers] would go ahead and resolve the issues on merit in a speedy fashion, but it’s pretty understandable why he would wait.”

Chambers will be bound by whatever decision the appeals court makes, she said.

“This is the court of appeals that governs West Virginia, so … whatever analysis it uses would very likely apply directly to the challenge before Judge Chambers,” Loewy said.

Attorneys for the West Virginia plaintiffs have been filing supplemental authority briefs each time another judge strikes down a marriage ban.

“We’re making sure the judge is aware of all of the developments across the country,” Loewy said.

Reach Kate White at kate.white@wvgazette.com or 304-348-1723.

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