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Same-sex marriage lawsuit moves on

Jan. 31, 2014 @ 12:00 AM

HUNTINGTON -- A federal judge in Huntington has ruled that a challenge to West Virginia's ban on same-sex marriage can proceed, but he did dismiss one of the lawsuit's complaints.

U.S. District Judge Robert C. Chambers entered his written opinion and order Wednesday.

The lawsuit, filed Oct. 1, 2013, argues clerks in Kanawha and Cabell counties violated the 14th Amendment rights of three same-sex couples to due process and equal protection in denying their requests for marriage licenses. The clerks contend their staffs simply followed state law.

Chambers denied the clerks' motion to dismiss the lawsuit, ruling the case does not involve difficult questions of state law as its ban clearly prohibits same-sex marriage without ambiguity. He then granted a more limited dismissal sought by state Attorney General Patrick Morrisey.

The ruling means the majority of the lawsuit can proceed, while it narrows the argument to in-state marriages. Chambers agreed with Morrisey in ruling the unmarried couples, with no stated desire to marry in another state, lack standing to challenge West Virginia's non-recognition of out-of-state marriages.

"Even if a certain activity is futile, a plaintiff must nonetheless demonstrate willingness to engage in the activity were it not for a barrier in place that makes the activity futile," the opinion states. "Just as a plaintiff alleging employment discrimination must allege that he or she would have applied for the job but for the discrimination, and just as a union must allege that it would invoke electoral procedures were those procedures not ineffective, so too must Plaintiffs here allege that they would indeed get married in another state but for the fact that West Virginia does not recognize those out-of-state same-sex marriages. Plaintiffs have failed to so allege."

Chambers, acknowledging a desire to settle constitutionality of the state's same-sex marriage ban in one case instead of two, gave the plaintiffs until Feb. 12 to file an amended complaint.

The judge also reserved judgment as to the potential impact of a plaintiff victory on the state's 55 counties, which are located in two federal districts. He gave the couples until Feb. 12 to seek involvement of additional parties or explain why targeting Cabell and Kanawha counties alone would be sufficient to bind remaining portions of the state.

Likewise, Morrisey and the clerks have until Feb. 12 to respond to the couples' motion for Chambers to unilaterally strike down the state law, known formally as a motion for summary judgment.

Those bringing the case are plaintiffs William Glavaris with fiancé Justin Murdock and Casie McGee with fiancée Sarah Adkins, all of Huntington, along with lesbian couple Nancy Michael and Jane Fenton with their child of St. Albans, W.Va.

Their lawsuit targets Cabell County Clerk Karen Cole and Kanawha County Clerk Vera McCormick. Morrisey's office intervened on behalf of the state.

Follow Curtis Johnson at Facebook.com/curtisjohnsonHD and via Twitter @curtisjohnsonHD.

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