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Challenge to West Virginia’s marriage equality ban will proceed

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A federal court in West Virginia is allowing the challenge to the state’s statutory same-sex marriage ban to move forward. The judge has denied motions to dismiss most of the case, although the court found that the current plaintiffs don’t have standing to challenge the portion of West Virginia’s ban that bars the state from recognizing same-sex marriages performed elsewhere:

A federal judge says most of a lawsuit challenging West Virginia’s ban on same-sex marriage can proceed.

But U.S. District Judge Robert C. Chambers says one claim can’t proceed without additional plaintiffs. That claim says West Virginia should recognize gay marriages performed in other states.

This week’s ruling came in a lawsuit filed by Lambda Legal on behalf of three same-sex couples and one couple’s child.

In dismissing the challenge to the “non-recognition” provision, the opinion notes:

Plaintiffs do not allege an intent or desire to marry elsewhere if that marriage would be recognized in West Virginia. Neither do they allege that they legally are qualified to do so. The closest that the Complaint comes to such an allegation is the statement that “the adult Plaintiffs and other same-sex couples . . . are also denied the ability to have a valid marriage from another jurisdiction recorded or recognized in West Virginia.”

The judge also noted that there is uncertainty as to whether the court could ultimately issue a ruling that is binding on all county clerks in the case, and has directed the parties to address that issue in briefing by February 12:

The Court directs Plaintiffs, by February 12, 2014, to either 1) seek joinder of whatever additional parties they deem necessary to create greater certainty as to the effect of a ruling in this case, or 2) file a responsive pleading explaining why the existing Defendants in this lawsuit are sufficient to bind state authorities and all county clerks should a ruling on the merits be made in favor of Plaintiffs and why joinder of additional parties is not necessary.

Lambda Legal issued a press release:

We are pleased that our West Virginia families will have their day in court to show why they should be treated fairly by the government. By moving to dismiss, the government was trying to prevent us from showing exactly how the marriage ban harms families. West Virginia’s exclusion interferes with families like Nancy and Jane’s ability to make decisions for their children in school enrollment, travel, health care, and other matters. These families need marriage and should not have to live with a law that treats them as inferior.

The case is McGee v. Cole.

Thanks to Kathleen Perrin for this filing

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  • 1. Dann  |  January 31, 2014 at 10:37 am

    I gave. Thank you and goid luck! D

  • 2. Scottie Thomaston  |  January 31, 2014 at 2:16 pm

    Thanks so much! We really appreciate it.

  • 3. davep  |  January 31, 2014 at 11:15 am

    It would be great if this trial could find some additional plaintiffs to challenge the section about recognition of out of state marriages. I hope they do.

  • 4. Mark  |  January 31, 2014 at 11:52 am

    Thumbs-up times 1,000.

  • 5. Mark  |  January 31, 2014 at 11:53 am

    to davep

  • 6. Zack12  |  January 31, 2014 at 1:01 pm

    Notice to plantiffs,the judge is tossing you a bone on how to get the one part of your lawsuit back. I'd suggest you take him up on it.

  • 7. Sean from NJ  |  January 31, 2014 at 1:31 pm

    This reminds me of the judges in MI and OH who practically laid out what legal strategy we should persue in order to prevail in their courts.

  • 8. Zack12  |  January 31, 2014 at 2:59 pm

    Stephen Breyer did the same thing during the DOMA hearings where he gave Roberta Kaplan more or less an assist on how to answer a couple of the questions.

  • 9. grod  |  January 31, 2014 at 3:39 pm

    Sean: Ok's Judge T. Kean in the Bishop and Burtons case provides them with a roadmap to demolish Part B of the amendment Footnote 18 p 28 :"It was unclear whether the Barton couple challenged Part B in the Amended Complaint, and they
    devoted only one page of argument to it in their motion for summary judgment…. In a proper equal protection challenge, portions of this Court’s analysis of Part A would also seem applicable to Part B. The Court is reminded of a quote by Harriet Beecher Stowe: “[N]ever give up, for that is just the place and time that the tide will turn.” Harriet Beecher Stowe, Old Town Folks (1869). The Burton were successful in having their portion heard on appeal. However in the text of the decision, Kean reference Judge T. Black's decision on the non-recognition provision in Ohio, which he says are identical to OK's. p 27. Obergefell case highlight the Barton couple’s evidentiary deficiencies: Obergefell attempted to obtain recognition, the Barton couple had not, because they could not find an official changed with 'recognition' duties.

  • 10. davep  |  January 31, 2014 at 1:36 pm

    UPDATE regarding NOM and the Indiana bill to put a SSM ban into the state Constitution (HJR3):

    I just got an email from NOM (I subscribe to keep tabs on them) which states that they are encouraging their minions to contact the Indiana legislature and demand that the section which was removed form the bill be put back in. This was the section that would ALSO deny any recognition of things like civil unions in ADDITION to denying recognition of actual civil marriage.

    SO – once again, we see that NOM's rhetoric about how they 'only want to protect marriage' and how they 'don't want to discriminate against gays' is absolute bullshit. Advocating for, and taking action for denying other forms of recognition and other forms of legal protections is further evidence of animus, which can be used against them.

  • 11. Zack12  |  January 31, 2014 at 3:09 pm

    Mike Pence has made it clear he wants that second sentence put back in and on the ballot this year.
    He knows this is the last shot and he doesn't want it on the ballot in 2016 with him.
    As for the rest,the only time NOM was for civil unions was in New Hampshire when the legislature was trying to repeal the new marriage law.
    Other then that,they've civil unions and domestic partnerships tooth and nail,as have the FRC and all the other groups who claim they'd be fine with us having something if it wasn't called marriage.
    Look at Hawaii,Rhode Island and Colorado for examples of that among others.
    They don't want us having any rights,period.

  • 12. KarlS  |  January 31, 2014 at 3:28 pm

    Yo Zack, I think you left out "fought" in the 4th sentence?….and than not then…


  • 13. Zack12  |  January 31, 2014 at 4:05 pm

    I did but I can't edit it.

  • 14. KarlS  |  January 31, 2014 at 4:11 pm

    Oh, rats…I was thinking this software had the edit option. Was thinking of some other one…no prob.

  • 15. ebohlman  |  February 3, 2014 at 1:15 pm

    It does, but you can't edit once someone's replied to your comment (so trolls can't alter the history of a thread to make someone appear to be replying to something other than what they actually replied to).

  • 16. KarlS  |  February 3, 2014 at 2:03 pm

    okay thankya! 🙂

  • 17. Josh  |  January 31, 2014 at 3:54 pm

    Yea I wish they would get called out on their lies. They say just don't call it marriage then turn around and say they oppose civil unions because they'll lead to marriage. They lie and say we keep wanting more and aren't happy with civil unions so they have to oppose those too. Most of us don't want civil unions and never did but that was the only option we had for a long time. Stupid nom :@

  • 18. Zack12  |  January 31, 2014 at 4:21 pm

    People weren't happy with civil unions because (surprise,surprise) seperate but equal didn't work.
    There were issues right away in places like New Jersey where companies would only do health plans for a couple in marriages,not civil unions,would provide housing only to couples in marriages and in many places,people simply didn't understand what civil unions were.
    Rhode Island's civil union "protections" were so watered down you could drive a truck through them and in Hawaii,more of the same.
    And despite all that,they still fought to prevent them and only offer them as a bone when it looks like we might get full equality.
    It's a joke,it really is.

  • 19. StraightDave  |  January 31, 2014 at 5:26 pm

    Well the final joke is on NOM, which they so richly deserve. By potentially putting civil unions back on the table, they highly risk the entire bill being shot down. I don't think Indiana voters would reject civil unions now. By overreaching, they will end up with nothing. Hell, it might not even make it out of the legislature with that section restored.
    Clueless. Can't see past their own bigotry. Down in flames again.

  • 20. Bruno71  |  January 31, 2014 at 7:28 pm

    Banning CUs/DPs doesn't poll well when the question is asked properly, yet we've seen states like Florida vote 62% to ban them. If this unfortunately does get to the polls this year, our side has to make damned sure the people of Indiana understand exactly what it is they're voting for. This was done correctly in Arizona in 2006.

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