Federal lawsuit challenges Virginia gay marriage ban

Advocates say that a person's liberty shouldn't be affected by crossing a state line.

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Frank Green | Richmond Times-Dispatch

Friday, August 2, 2013

A federal class-action lawsuit filed Thursday challenges Virginia laws barring same-sex marriage and the refusal to recognize such marriages legally performed elsewhere.

The suit was filed on behalf of Joanne Harris and Jessica Duff of Staunton and Christy Berghoff and Victoria Kidd of Winchester and seeks to represent all same-sex couples in Virginia who wish to marry here or who have married in other states.

Filed in Harrisonburg by the American Civil Liberties Union, the ACLU of Virginia, Lambda Legal and the law firm of Jenner & Block, the 39-page suit names Gov. Bob McDonnell and other state officials as defendants.

Thirteen states and the District of Columbia now allow same-sex marriages.

"Every day that our government chooses not to afford our fellow Virginians that freedom and not to recognize the marriages of our fellow Virginians is a day that our government is saying to those people that they're second-class citizens," said Claire Guthrie Gastanaga, executive director of the ACLU of Virginia.

In June, the U.S. Supreme Court struck down part of the federal Defense of Marriage Act preventing gay couples from receiving federal benefits available to married people and let stand a lower court ruling tossing out California's gay marriage ban.

The rulings did not overrule state bans on same-sex marriage, but opened the door for lawsuits to challenge such laws in Virginia and other states.

Thursday's suit is the second challenge to Virginia's law. On July 18 a gay couple in Norfolk filed suit in federal court there against state and local officials because they were denied a marriage license by the Norfolk Circuit Court clerk's office.

Amanda Goad, an ACLU lawyer, said Thursday that "there are several thousand couples across the commonwealth currently feeling the effects of Virginia's discriminatory marriage laws."

"By proceeding as a class action we plan to bring into the case the stories of all those couples and their families and show the court the many different ways Virginia's current marriage laws have hurt them," she said.

Brian Gottstein, a spokesman for the Virginia attorney general's office, said the office does not comment on pending litigation.

However, in June after the U.S. Supreme Court decisions, Gottstein said Virginia has followed the traditional definition of marriage as being between one man and one woman for more than 400 years.

"Virginians voted overwhelmingly to add this traditional definition to their constitution," Gottstein said. "Consistent with the duties of the attorney general, this office will continue to defend challenges to the constitution and the laws of Virginia."

Chris Freund, vice president of the Family Foundation of Virginia, said, "No one should be surprised that the ACLU and same-sex marriage advocates are seeking to find a judge to undo the vote of over one million Virginians.

"They know they're unlikely to win through our constitutional, democratic, electoral and legislative process, so they do what they have always tried to do, go around the people," Freund said.

"If public opinion is indeed changing as same sex marriage advocates allege, they should be able to win at the ballot box, change the legislature and use the same process we used to pass the amendment in the first place," Freund said.

Gastanaga said, "We don't put peoples' human rights up for a vote."

In any case, she said, the constitutional amendment barring same-sex marriage in Virginia passed in a 57-43 percent vote on in 2006. "The reality is things have changed and things have changed drastically" since then, she said.

James Parrish, executive director of Equality Virginia, said, "It seems contrary to the rights and liberties guaranteed to us by our Constitution, that a trip across the Potomac River, an arbitrary geographical line, would somehow grant or deny any citizen equal treatment under the law."

Two of the plaintiffs - Berghoff, 37, and Kidd, 33, of Winchester - have been together almost 10 years and were married legally in Washington and in 2005 moved to Virginia, where their marriage is not recognized.

The two have an 8-month-old daughter, and the three appeared together at a news conference in Richmond Thursday.

"I am a stay-at-home mother to our daughter, Lydia. The law doesn't recognize my relationship with Christy and by extension, the law doesn't recognize my relationship with Lydia and that's really why I'm here today," Kidd said.

Berghoff said, "Because Virginia does not recognize our marriage, they don't respect Victoria as my wife and she is also the parent of our child."

"Right now when I go to work in D.C., I'm married with a child, when I come home to Virginia I'm considered single. That's why I'm here today," she said.

Lawyers handling the case said that, taking appeals into account, it could take anywhere from two to four years to be resolved.

Monday, August 12, 2013