HUNTINGTON — West Virginia Attorney General Patrick Morrisey and clerks in two of the state’s most populous counties are defending its ban on same-sex marriage, arguing a legal challenge targets the wrong defendants and invents a fundamental right that does not exist.
The lawsuit, filed Oct. 1, 2013, argues clerks in Kanawha and Cabell counties violated the 14th Amendment right to due process and equal protection in denying a request for marriage licenses brought by three same-sex couples. It comes at a when federal judges across the nation are striking down similar bans in other states, including partial victories for same-sex advocates recently in Kentucky and Ohio.
Morrisey joined the clerks last week in urging U.S. District Judge Robert C. Chambers to rule against the Huntington and St. Albans, W.Va., couples. Their motions state the couples’ should have targeted the State Registrar and the Secretary of State, both of whom are responsible for enforcing the challenged law.
The defendants also contend prior case law provides no fundamental right to same-sex marriage. It cites case law arguing such rights must be extended with special care as not to take an issue “outside the arena of public debate and legislative action.”
Their motions cite case law arguing such rights must be “objectively, deeply rooted in this nation’s history and tradition,” in contending same-sex marriage fails to meet that standard as no state permitted such unions until 2003.
Morrisey’s motion also argues case law does not define homosexuals as part of a special class. He also deflected plaintiff claims that the state’s ban discriminates against gender and was motivated by a desire to harm homosexuals. He, instead, cataloged decades of state law arguing the issue has been resolved with three, near-unanimous votes of the Legislature in favor of traditional marriage.
“Plaintiffs now seek this Court’s intervention in that debate, but not every question of policy is a constitutional one,” the motion states. “It is not for this Court to determine whether West Virginia’s marriage laws are sound or unsound policy. The issue here is whether those laws violate the Constitution. They do not.”
Morrisey analysis of state law also pointed to an “incremental expansion of gay rights.” He noted recent passage of laws that permit child adoption by the unmarried, prohibit school bullying and allow anyone to designate their visitors in a hospital.
Morrisey argued the Constitution protects such a reasoned approach as the state’s ban merely maintains the status quo without targeting or taking away existing rights once extended to homosexuals.
The clerks’ motion mirrored many aspects of Morrisey’s argument, both of which were filed Feb. 12 in advance of a deadline set by the court. The clerks additionally contend a victory for the plaintiffs would infringe upon the 10th Amendment right of state sovereignty. The clerks also argue such a ruling would create confusion within the state as to its impact beyond Cabell and Kanawha County, much less the state’s northern district of federal court.
The plantiffs, in a separate filing Feb. 12, argued a victory for its side in Cabell and Kanawha counties would impact the entire state insisting its mechanism for issuing marriage licenses is consistent statewide.
Those bringing the case are plaintiffs 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 with their child of St. Albans, W.Va. Their lawsuit targets Cabell County Clerk Karen Cole and Kanawha County Clerk Vera McCormick. Morrisey’s office intervened on behalf of the state.
The Family Policy Council faithfully influences West Virginia’s laws, lawmakers and state elections to defend the constitutional right of religious freedom for families and churches. Family Policy Council of West Virginia is affiliated with Focus on the Family and CitizenLink.