Virginia Gay Marriage Suit Certified As Fed. Benefits Extended

Virginia’s ban on same-sex marriage is facing fresh challenges this week after a federal judge granted class action status in a lawsuit seeking to overturn the state’s ban on gay and lesbian marriages. U.S. District Court Judge Michael Urbanski ruled on Friday that same-sex couples in Virginia, as well as those married in states where such partnerships are legal, would be able to join a lawsuit seeking a declaratory judgment striking down current laws regarding same-sex marriages. The suit also seeks a permanent injunction barring the enforcement of laws that currently prohibit legal recognition of same-sex marriages.

Fighting for gay and lesbian rights is one of the defining civil rights challenges of our time.

The plaintiffs in the suit, which was filed in federal court in West Virginia, are Christy Berghoff and Victoria Kidd of Winchester, and Joanne Harris and Jessica Duff of Staunton. The suit was first filed in August 2013 and sought to represent a class of all same-sex couples who were either legally married outside the state or who hoped to marry in the future. Berghoff and Kidd were married in the District of Columbia in 2011 but live in Virginia, where their marriage isn’t recognized.

Virginia’s new Attorney General, Mark Herring, has already announced his office won’t be defending the ban. Mr. Herring, a Democrat, released a statement arguing that dropping his office’s defense of the ban would put Virginia “on the right side of history” – a move which has angered Virginian Republicans and prompted them to seek permission to hire their own counsel to defend the current ban. According to Reuters, Virginia’s Democratic Governor Terry McAuliffe would most likely veto any such move, making it difficult to see how the ban’s supporters will be able to act.

In approving class action status, Judge Urbanski wrote that the lawsuit met the standards required, citing a 2010 U.S. census that estimated 15,000 same-sex couples resided in Virginia. The defendants in the case - state Registrar of Vital Records Janet M. Rainey and Thomas E. Roberts, Clerk of Staunton Circuit – had failed to demonstrate that there would be significant difficulty in working out who qualifies, Urbanski said.

"Contrary to this argument, if plaintiffs are successful here, defendants shall have no difficulty identifying members of the class," Urbanski wrote. "Two people -- a couple -- of same sex will apply for a marriage license. Or, two people of the same sex married in another jurisdiction will seek recognition of their marriage. If plaintiffs prevail, defendants shall not be permitted to deny such an application or such recognition solely on the basis that the couple is of the same sex. Thus, determining to whom the judgment applies and how to implement such a judgment would be simple."

In their initial filing, plaintiffs alleged that the Virginia Marriage Amendment, among other laws, singles out gays and lesbians and violates the equal protection and due process clauses of the 14th Amendment.

Virginia’s current ban came into force in 2006 when 57% of voters supported the law; however, Reuters reported last week that a newly released poll from Virginia’s Christopher Newport University suggested that 56% of voters now oppose the ban – a significant shift that may well be a response to recognition of same-sex marriages at both the federal and state level. Seventeen states currently recognize same-sex marriages, while Colorado, Oregon, Wisconsin and Nevada recognize either civil unions or domestic partnerships (See this helpful breakdown of U.S. States from Freedom to Marry.)

Class certification in the Virginia lawsuit comes as the United States government announced this week it will further expand federal recognition of same-sex to cover bankruptcies, prison visits and survivor benefits. The expansion will reportedly include the 34 states – Virginia included – where same-sex marriage is not yet legal. Speaking before Sweden’s Parliament last week, U.S. Attorney General Eric H. Holder Jr. called fighting for gay and lesbian rights one of “the defining civil rights challenges of our time.”