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West Virginia AG Wants Lawsuit Challenging State's Ban on Gay Marriage Thrown Out

West Virginia Attorney General has motioned for a judge to throw out a lawsuit challenging the state's ban on gay marriage, the WV Gazette reports:

MorriseyIn 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."

Lambda Legal filed the lawsuit in October on behalf of three couples. Last month Attorney General Patrick Morrisey filed a motion to intervene and defend the state's ban on same-sex marriage.

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Comments

  1. "Doesn't cause immediate injury or damage...."
    Has this guy just rode into town with the Circus ?

    Every day a gay person's right to equality is infringed is harm and an immediate injury to his/her constitutional rights.
    It also harms society when its constitutional fundamental doctrines are flouted and manipulated.

    [- especially by fat Republican hogs.....]

    But I digress......
    If he even spent one day in constitutional law class he would know better.

    Posted by: JackFknTwist | Dec 19, 2013 12:15:43 PM


  2. Not an attorney, but from the outside looking in, their suit seems a bit shakey if this guy is able to shoot that many holes in it.

    I say withdraw and re-draft the suit so it's a bit more air-tight and states actual damage (financial, mental anguish, whatever) and/or non-constitutionality in very clear terms.

    Posted by: johnny | Dec 19, 2013 1:03:46 PM


  3. BS Johnny;

    The day Heterosexuals are held to the EXACT same standard of scrutiny as Gays in W.V. is the day YOU would have a point.

    But you don't;

    "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."

    XtianBigotLawyersFromWestVaginaSaysWhat?

    Posted by: q | Dec 19, 2013 1:39:12 PM


  4. Nice teeth.

    Posted by: The Milkman | Dec 19, 2013 1:50:36 PM


  5. The defense's assertion no immediate harm is incurred makes the assumption the defense can speak for the filers with accuracy how they perceive harm placed upon them. Also, simply stating that other options of marriage from other states can sufficiently allow equal access to marriage fails to identify that state citizens should be allowed equal protection and rights within their own state. Not another state where the filers are not citizens. Therefore, the defense's position as defender of its own state's law cannot provide access to other states as their jurisdiction cannot encompass rights and privileges offered to the citizens of states where same gender marriage is allowed.

    Posted by: todd | Dec 19, 2013 5:06:00 PM


  6. There are two issues here and the synopsis given is vague as to which one is being referred to.

    That is, there is the issue of getting married within WV and there is the issue of recognizing marriages from outside WV.

    The synopsis seems to be referring to the second part and if that is the only thing that is in the lawsuit, then the ruling is correct. That is, if the only thing being challenged is the refusal of WV to recognize same-sex marriages performed in other states, then the fact that the plaintiffs haven't married outside of WV is extremely relevant. Indeed, they have suffered no harm because they are legally incapable of being affected by the law: It only applies to those who were married outside of WV. These people haven't been and thus there is no way the law could affect them.

    In order to file the lawsuit, they need standing which means they'll have to get married outside of WV and then come back, have the marriage be unrecognized, and then they can file suit.

    While I am sure that that isn't the only part of WV law, that may have been the only thing this specific lawsuit was targeted at and if so, it was rightfully dismissed no matter how much I don't like the law.

    And that's where the synopsis is too vague: Is that the only thing this lawsuit was challenging? After all, the Windsor case was only challenging Section 3 of DOMA that says the federal government will not recognize same-sex marriage. Section 2 that says states don't have to recognize same-sex marriages performed in other states is still alive. If this lawsuit were only challenging interstate recognition, then it was rightfully dismissed.

    Was that the case?

    Posted by: Rrhain | Dec 19, 2013 5:35:29 PM


  7. Pages 10 and 11 of the suit (http://www.lambdalegal.org/in-court/legal-docs/mcgee_wv_20131001_complaint-for-declaratory-and-injunctive-relief) describe specific incidents where WV county clerks denied the plaintiffs marriage licenses. They have standing to sue on that basis. The AG's motion is just a smokescreen. The suit mentions the fact that WV doesn't recognize out of state SSMs, but that's not the basis of the suit.

    Posted by: JJ | Dec 19, 2013 11:52:18 PM


  8. Apparently the AG has been unable to find a valid reason to request the suit be dismissed so he's simply going to make up something. I wonder if you actually have to be an attorney in WV to be the AG in some states that is not a requirement and since the motion was actually filed by the Asst. AG it kind of makes you wonder. Although I know nothing about the WV legal system I would find it difficult to believe that the court would throw out the case based on this flimsy request. Not to say the plaintiffs will win only that the case will most likely go forward.

    Posted by: ThomT | Dec 20, 2013 10:00:56 AM


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