Same-sex couples can’t apply for marriage licenses yet in West Virginia, but advocates believe a ruling in their favor is coming, after the U.S. Supreme Court let stand an appeals court’s determination that a similar ban in Virginia is unconstitutional.
U.S. District Judge Robert C. Chambers has twice delayed action on the lawsuit challenging West Virginia’s ban on same-sex marriage until the Virginia case was sorted out. On Sept. 18, Chambers said he would wait until the U.S. Supreme Court spoke on the Virginia ruling from the 4th U.S. Circuit Court of Appeals.
On Monday morning, the Supreme Court refused to take up an appeal of the 4th Circuit. By Monday afternoon, same-sex couples were getting married in Virginia.
“Unless the [West Virginia] court can identify something different about this case, about the state law, then they are bound to follow the 4th Circuit’s decision,” said Beth Littrell, senior attorney for Lambda Legal, a national civil-rights group that represents three same-sex couples, two from Huntington and one from St. Albans, who sued to overturn West Virginia’s ban.
Those plaintiffs submitted a motion Monday afternoon asking Chambers to enter judgment in their favor in the case. The motion argues that the Virginia and West Virginia cases are similar, and that the 4th Circuit court had previously recognized the two as similar in its opinion striking down Virginia’s marriage ban.
Littrell said the plaintiffs filed the motion “to ensure the court is aware of what happened today, and to ask it to provide justice to our plaintiffs as soon as possible,” she said.
West Virginia Attorney General Patrick Morrisey, who has been fighting the challenge to West Virginia’s ban on same-sex marriage, hadn’t announced his next steps as of late Monday afternoon.
Morrisey’s office intervened in the lawsuit on behalf of the state and said that the wrong people are being sued, because it was the Legislature that enacted the state’s ban.
He had also filed a friend-of-the-court brief in the Virginia case, urging the federal appeals court to uphold the ban.
“In light of the U.S. Supreme Court’s surprising decision to not review this matter, we are analyzing the implications for the West Virginia case,” Morrisey spokeswoman Beth Ryan said in a statement Monday. “We will issue a statement soon regarding the state’s next steps.”
A U.S. District Court employee in Huntington said Chambers would not take action Monday due to a full docket of cases already before him. She didn’t know when he would proceed in the West Virginia lawsuit.
Besides Virginia and West Virginia, the 4th Circuit also includes Maryland, North Carolina and South Carolina. Maryland already allows same-sex marriages, and North Carolina and South Carolina have challenges to their bans pending in the courts.
North Carolina’s attorney general previously said he would no longer defend the state’s same-sex marriage ban, but legislative leaders there said Monday they would mount a defense. In South Carolina, the attorney general said he would continue to fight for the state’s ban, but a lawyer for the same-sex plaintiffs said the state would be better served not spending money on a fruitless pursuit.
Other states in West Virginia’s position — that is, in federal circuits with another state that had its same-sex marriage ban rejected — include Wyoming, where Gov. Matt Mead said the state would continue to defend its same-sex marriage ban.
Littrell said she expected Chambers to strike down the state’s same-sex marriage ban, since the merits of the cases in Virginia and West Virginia are so similar.
“It is theoretically possible, but I can’t think of a way for the court to distinguish the Virginia decision from the West Virginia decision,” she said.
Lambda Legal had been pulling for the Supreme Court to take up the cases and rule in favor of same-sex marriage, so that all same-sex marriage bans would be struck down at once, Littrell said.
“That would have been the best-case scenario,” she said. “This is the second-best scenario, in my opinion.”
Kanawha County Clerk Vera McCormick and Cabell County Clerk Karen Cole were named as the defendants in the West Virginia lawsuit. McCormick’s office wasn’t issuing marriage licenses to same-sex couples on Monday, but the office was in contact with the state’s Vital Registration Office — which handles marriage, divorce, birth and death records — about next steps, said David Dodd, chief deputy county clerk.
“We are still operating under current law, which is still same-sex is not allowed,” Dodd said. “I’m not sure how it’s going to play out. I’ll let the lawyers do that.”
The first line of the state’s current marriage license reads, “Marriage is designed to be a loving and lifelong union between a woman and a man,” according to Dodd.
“That’s the first sentence, so obviously that’s going to have to be removed,” he said. “There would definitely have to be some changes.”
Forms are printed out as couples come in, he said, so there aren’t stacks of forms that will have to be thrown away.
Putnam County Clerk Brian Wood also noted that changes will have to come from the state.
“It’s going to be bigger than me as far as making the decision on what forms will be used, because everyone uses the same form,” he said. “It’s not just Putnam County’s office that’s going to have to change the form.”
When describing the process, Dodd caught himself saying that the “bride and groom” sign the application when done.
“I might want to come up with another word for that, mightn’t I?” he said.
Andrew Schneider, executive director of Fairness West Virginia, said the members of the LGBT rights organization were excited that the case can move forward more quickly.
He said if the Supreme Court hadn’t taken up the case, it could have been summer before the court ruled.
“Today’s announcement by the United States Supreme Court is a significant step forward for fairness in West Virginia and the 57,000 LGBT Mountaineers who call West Virginia home,” he said.
The Associated Press contributed to this report.
Reach Erin Beck at email@example.com, 304-348-5163 or follow @erinbeckwv on Twitter.