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Court clears way for gay marriage in W.Va.

LAWRENCE PIERCE | Gazette file photo

The federal appeals court that covers West Virginia has agreed that a ban on same-sex marriage in neighboring Virginia is unconstitutional — a move that advocates said would pave the way for gay and lesbian couples to marry in West Virginia.

In a 2-1 decision released Monday, a three-judge panel for the 4th U.S. Circuit Court of Appeals upheld a federal judge’s rejection of Virginia’s longtime ban on same-sex marriage. Opponents have 21 days to ask for a rehearing.

U.S. District Judge Robert C. Chambers, who is considering three West Virginia couples’ challenge to this state’s same-sex marriage ban, said in June that he was waiting for the 4th Circuit decision before proceeding in the case before him.

“There are no barriers to the judge in our case immediately lifting the stay that he imposed waiting for the 4th Circuit, and there is no constitutional justification for continuing to deny same-sex couples in West Virginia the right to marry,” Beth Littrell, lead plaintiffs’ attorney for the case filed in West Virginia, said after Monday’s ruling.

Littrell, a staff attorney for Lambda Legal, a national civil-rights organization that filed the lawsuit on behalf of the West Virginia couples, said the ruling doesn’t immediately change anything in West Virginia, “but it’s only a matter of time.”

The plaintiffs in West Virginia — two Huntington couples and one St. Albans couple who sued the county clerks in Cabell and Kanawha counties — plan to ask Chambers to lift the stay and immediately rule on their case.

“At the very least we’ll be bringing this [ruling] of binding authority to his attention,” Littrell said.

“The arguments are almost identical in terms of the reasons that same-sex couples are denied their civil rights when they are not allowed to marry the person they choose. The arguments on the other side are exactly the same.”

Fairness West Virginia, a gay-rights group, issued a statement calling Monday’s ruling “a historic day for all Mountaineers.”

“The 4th Circuit Court ruling is truly about love, fairness and family values. This ruling is a victory for the countless families that have over and over again been denied equality under West Virginia state law,” the group said. “We at Fairness West Virginia will celebrate this historic ruling, but tomorrow the work of fairness will continue with renewed strength.”

The 4th Circuit includes Maryland, North Carolina, South Carolina, Virginia and West Virginia. Maryland already allows same-sex marriage. The Virginia gay marriage case is one of several that could go to the U.S. Supreme Court.

“We recognize that same-sex marriage makes some people deeply uncomfortable. However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws,” Judge Henry F. Floyd wrote in the 4th Circuit’s opinion, joined by Judge Roger Gregory.

“The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual’s life,” Floyd wrote. “Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.”

Judge Paul Niemeyer dissented, writing, “Because there is no fundamental right to same-sex marriage and there are rational reasons for not recognizing it, just as there are rational reasons for recognizing it, I conclude that we … must allow the States to enact legislation on the subject in accordance with their political processes.”

Floyd was appointed to the federal bench by President George W. Bush, and to the appeals court by President Obama. Gregory was appointed to the federal appeals court under a temporary recess appointment by President Bill Clinton and renominated by Bush. Niemeyer was appointed to the federal bench by President Ronald Reagan, and to the appeals court by President George H.W. Bush.

West Virginia Attorney General Patrick Morrisey filed a friend-of-the-court brief in the Virginia case, urging the federal appeals court to uphold the same-sex marriage ban. Morrisey is also fighting the challenge to West Virginia’s ban.

Morrisey spokeswoman Beth Ryan said in an emailed statement Monday that Morrisey’s office is still reviewing the decision and would withhold comment until the decision is final.

North Carolina Attorney General Roy Cooper, who was fighting a challenge to his state’s same-sex marriage ban, said Monday that he would not continue that fight in light of the 4th Circuit’s decision.

The Family Policy Council of West Virginia filed a friend-of-the-court brief in the West Virginia case in March, asking Chambers to uphold the marriage ban.

Allen Whitt, president of the conservative group, said Monday the ruling does not signify a shift in the American public’s view of same-sex marriage, but rather is the result of a strategy from “same-sex marriage advocates.”

“Same-sex marriage activists have been unable to change the minds of the majority of the people in the U.S. … It’s much simpler to force a redefinition of marriage onto the American people by finding two out of three federal appellate judges to side with them,” Whitt said.

Whitt said he expected he expects the 5th U.S. Circuit Court of Appeals, which covers federal district courts in Louisiana, Mississippi and Texas, to rule against gay marriage.

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 marriage licenses from another state, so they can’t sue over that issue, the judge ruled. An attorney from Lambda Legal said at the time that if gays and lesbians are allowed to marry in West Virginia, she didn’t see how the state could refuse to recognize such marriages from other states.

In February, U.S. District Judge Arenda Wright Allen ruled that Virginia’s same-sex marriage ban was unconstitutional, because it violated the guarantees of equal protection and due process. Lawyers for two circuit court clerks, whose duties include issuing marriage licenses, appealed the decision after Virginia’s new attorney general declined to defend the state’s ban.

The lawsuit was filed by two Norfolk, Virginia, men who were denied a marriage license and two Chesterfield (Virginia) County women whose marriage in California is not recognized by Virginia.

The 4th Circuit is the second federal appeals court to uphold a lower court ruling striking down a same-sex marriage ban. In recent weeks, the 10th U.S. Circuit Court of Appeals issued similar rulings for Utah and Oklahoma.

The Associated Press contributed to this report. Reach Kate White at, 304-348-1723 or follow @KateLWhite on Twitter.

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