CHARLESTON, W.Va. -- The state attorney general's office asked a judge this week to throw out a federal lawsuit challenging West Virginia's ban on same-sex marriage, saying the plaintiffs in the case don't have a legal basis to challenge the law.
In its motion, the state claims two reasons why the lawsuit filed by three same-sex couples should be dismissed: state law doesn't cause them any immediate harm and the couples aren't married, so the fact West Virginia doesn't recognize same-sex marriages from other states doesn't affect them, according to state attorneys.
"The statute causes no concrete and immediate injury to Plaintiffs, who allege only the desire to marry each other in West Virginia and have not alleged that they are or intend to be married in another State," the motion filed in U.S. District Court on Monday by Assistant Attorney General Julie Ann Warren says.
"Plaintiffs do not allege that they have valid marriages from other jurisdictions, that they have taken any steps to obtain valid marriages from other jurisdictions, that they intend to be married in other jurisdictions, or that they would have obtained a valid marriage from another jurisdiction if West Virginia recognized out-of-state same-sex marriage."
On Oct. 1, three couples sued Kanawha County Clerk Vera McCormick and Cabell County Clerk Karen Cole, alleging that, by complying with state law and refusing to issue them marriage licenses, the clerks are unfairly discriminating against same-sex couples, in violation of the 14th Amendment of the U.S. Constitution.
West Virginia law bans same-sex marriages and does not recognize same-sex marriages performed in other states.
The lawsuit says that, by denying the couples marriage licenses, the clerks are denying them benefits such as health insurance, hospital visitation rights, family-leave and tax benefits.
Lambda Legal, a national gay rights organization, filed the lawsuit on behalf of the three couples: Casie McGee and Sarah Adkins, Justin Murdock and William Glavaris, and Nancy Michael and Jane Fenton.
"I'm tired of the soft discrimination we're met with every day because we can't use the same terminology other couples can," Murdock told the Gazette-Mail in October. "People say, 'Why don't you just go out of state and get married?' We don't want to do that. Will was raised in Logan County. I was raised in Wayne County. We've been in West Virginia our whole lives. We love this state."
Last month, West Virginia Attorney General Patrick Morrisey intervened in the lawsuit to defend state law.
Chuck Bailey, McCormick's attorney, filed a motion Wednesday also asking Judge Robert Chambers to dismiss the case.
Bailey writes the matter should be handled through the state's legislative process.
The matter belongs to the state, Bailey writes, "McCormick prays this court will presently abstain from ruling on this issue, particularly in light of the upcoming legislative session."
In June, the U.S. Supreme Court struck down a key piece of the federal Defense of Marriage Act, ruling that same-sex couples who are legally married are entitled to federal benefits.