Attorneys for three gay couples living in Huntington and St. Albans, W.Va., attempting to ride the momentum of recent court rulings from other states, filed a motion for summary judgment this week urging U.S. District Judge Robert C. Chambers to unilaterally strike down West Virginia’s law banning same-sex marriage.
The filing, announced Tuesday, comes three months after the couples challenged the state’s law arguing it violates their 14th Amendment rights to due process and equal protection. This week’s motion furthers that argument with a piece-by-piece attack rebutting those who oppose same-sex marriage.
The motion describes 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 draws parallels with antiquated arguments over interracial marriage and disputes others regarding procreation saying no law prohibits marriage by the “sterile and the elderly.”
It further advocates for the 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 — insisting without access to the label of marriage they cannot adequately describe their relationships.
“Plaintiffs wish to express the nature, depth and quality of their lifelong commitment to each other in the way that they, their family and society best understand,” the motion states.
Cabell County Clerk Karen Cole and her counterpart in Kanawha County, both defendants, have pending motions to dismiss the lawsuit suggesting a judicial ruling would interfere with the legislative process. Likewise, state Attorney General Patrick Morrisey sought dismissal arguing the couples lack legal standing to challenge at least a portion of the law.
Lambda Legal, a New York-based law firm representing the couples with attorneys from Charleston, has opposed the three motions for dismissal. Lambda Legal senior staff attorney Beth Littrell announced this week’s filing Tuesday saying four states have been opened to same-sex marriage since the Oct. 1 filing in Huntington.
That includes a federal judge’s ruling last month in conservative Utah. It upped the number of states allowing same-sex weddings from 12 to 18, in addition to a federal judge in Ohio who indicated his support in a narrow ruling that recognized same-sex death certificates.
Decisions affecting six states, in addition to Ohio, followed a U.S. Supreme Court ruling in June that struck down the federal Defense of Marriage Act, which those representing the local couples insist strongly parallels West Virginia’s legislation.
Their motion repeatedly cited the June ruling arguing, like the federal legislation, West Virginia’s law “serves only to ‘humiliate’ the ‘children now being raised by same-sex couples’” and “‘to impose a disadvantage, a separate status, and so a stigma upon’ same-sex couples in the eyes of the state and the broader community.”
The plaintiffs motion traced West Virginia’s law to spring 2000, arguing it was passed, “because of, not in spite of, its adverse effect on same-sex couples,” to head off court rulings similar to those in Hawaii and Vermont.
Attorneys for the couples cited case law insisting the right to marry and choose a spouse are personal matters for which the government should have little say. It also attacked West Virginia’s law in context with its other statues saying the state, “all but stays out of each individual’s decision whether and whom to marry” provided the spouse is of the opposite sex.
“A person may marry someone of a different sex who is of a different religion, despised by his or her parents, with a criminal record, or a history of abuse,” the motion states. “Spouses need not pass a fertility test, intend to procreate, be of childrearing age, have any parenting skills, or account for any history of childrearing or support.”
The plaintiffs’ motion mentioned Cole in arguing against those who believe the state’s meaning of marriage is static or incapable of being more inclusive. The couples’ attorneys argued such a belief ignored significant changes through court decisions and legislation.
“West Virginia criminally punished any white person who married someone of a different race,” the motion said, citing state law prior to 1967. “Marriage today is a vastly changed institution from what it historically was, and yet it remains both a cherished value and the sole universally-understood and respected way in our society of communicating that two people are family, love each other, and have made a lifetime commitment of mutual responsibility.”
All sides are set to attend a scheduling conference in the case next week.