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Time sought to challenge same-sex marriage ban

Jan. 02, 2014 @ 12:00 AM

HUNTINGTON -- West Virginia Attorney General Patrick Morrisey, Cabell County Clerk Karen Cole and her counterpart in Charleston are asking for more time as they prepare arguments in a challenge to state's ban on same-sex marriage.

The joint motion, filed late Tuesday, followed a Monday request from the plaintiffs, who sought summary judgment urging U.S. District Judge Robert C. Chambers to unilaterally strike down the state law banning same-sex marriage.

Morrisey and the county clerks agree Chambers should be able to dispose of the case much quicker than typical litigation, however their joint motion the plaintiffs' most recent move came too quick. It notes the holiday season in stating their side needs more time to argue pending motions to dismiss and the case in general.

"Defendants understand that Plaintiffs' counsel have been involved in similar constitutional challenges across the country and are prepared to brief this case based on previously prepared filings," the joint motion states. "In contrast, Defendants have not litigated similar challenges in West Virginia. For the State in particular, a brief on the merits in this sort of case ... requires significant time to prepare, as the positions taken by the State may have wide-ranging implications and must be thoroughly vetted."

Attorneys for the plaintiffs, three same-sex couples living in Huntington and St. Albans, W.Va., cited case law in Monday's filing that argued a party can move for summary judgment as early as the lawsuit's filing.

The defendants' joint motion asks Chambers to stay briefings at on the matter at least until all sides meet at a scheduling conference, already scheduled for Monday in Huntington. The defendants believe such a delay will not harm the plaintiffs.

The lawsuit, filed Oct. 1, was brought by three couples -- 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 of St. Albans. Each argue their 14th Amendment rights to due process and equal protection were violated when they were denied marriage licenses by county clerks in Kanawha and Cabell counties.

The clerks contend they simply carried out state law. Both clerks have pending motions to dismiss suggesting a judicial ruling would interfere with the legislative process. Likewise, Morrisey sought dismissal arguing the couples lack legal standing to challenge at least a portion of the law.

The plaintiffs' motion for summary judgment involved a piece-by-piece attack rebutting those who oppose same-sex marriage. It described West Virginia's ban as unconstitutional under any standard of review, arguing it denies the couples equal protection and the fundamental right to marry the person he or she loves. It drew parallels with antiquated arguments over interracial marriage and disputes others regarding procreation saying no law prohibits marriage by the "sterile and the elderly."

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

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