Same-sex couples file suit challenging Virginia gay marriage ban

Class-action lawsuit filed Thursday asks a federal judge to declare unconstitutional Virginia's ban on gay marriage. It is the latest such suit to be filed since the US Supreme Court struck down part of DOMA in late June.

By , Staff writer

Two same-sex couples in Virginia filed suit on Thursday asking a federal judge to declare the state’s ban on gay marriage unconstitutional.

The class-action lawsuit, filed on behalf of all similarly situated gay and lesbian couples in Virginia, is the latest in a growing number of lawsuits across the country challenging restrictive marriage laws after the US Supreme Court invalidated a portion of the federal Defense of Marriage Act (DOMA) in late June.

The suit, filed in federal court in Harrisonburg, Va., takes aim at state provisions considered among the most restrictive in the nation. In addition to the constitutional ban limiting marriage to a union between one man and one woman, Virginia law also bars civil unions, partnership contracts, or any other arrangements that seek to bestow the privileges or obligations of marriage to same-sex couples. The state also bars any recognition of same-sex marriages or civil unions entered into in other states.

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Virginia voters ratified a constitutional amendment in 2006 limiting marriage to one man and one woman. The vote was 57 percent in favor and 43 percent opposed.

“The Commonwealth, without any adequate justification, has enacted an unprecedented series of statutory and constitutional amendments to single out lesbian and gay Virginians by excluding them from the freedom to marry,” the lawsuit says in part.

The Virginia restrictions send a “purposeful message that [Virginia and its public officials] view lesbians, gay men, and their children as second-class citizens who are undeserving of the legal sanction, respect, protections, and support that heterosexuals and their families are able to enjoy through marriage,” the suit says.

Currently 29 states have constitutional amendments banning same-sex marriages. Six other states enforce the same ban through state law.

In contrast, 14 states and the District of Columbia recognize same-sex marriages.

The Virginia lawsuit was filed on behalf of two lesbian couples by lawyers with the American Civil Liberties Union and the gay rights group Lambda Legal Defense and Education Fund.

Plaintiffs Christy Berghoff and Victoria Kidd live in Winchester, Va., with their 8-month-old daughter, Lydia. They were married in Washington, D.C., in 2011, but Virginia does not recognize the union as legally legitimate.

Joanne Harris and Jessica Duff live in Staunton, Va., with their 4-year-old son, Jabari. They have been together in a committed relationship for 11 years and would like to marry, but Virginia official denied their application for a marriage license.

“Plaintiffs are productive, contributing citizens who support their families and nurture their children, but must do so without the same legal shelter, dignity, and respect afforded by the Commonwealth to other families through access to the universally celebrated status of marriage,” the lawsuit says.

“Virginia is home for us. Our families are here, our jobs are here, and our community is a great support for us, but it makes us sad that we cannot get married where we live,” Ms. Harris said in a statement. “It hits me in the gut that two hours from our house same-sex couples in Maryland and D.C. can marry.” 

Ms. Berghoff is an Air Force veteran, but because theirs is a same-sex marriage her wife is not eligible to receive the same level of benefits available to opposite-sex couples.

“I’ve been with Victoria for almost a decade now, and it hurts to have our home state say we are not married when it recognizes marriages entered into by different-sex couples who may have only recently met,” Berghoff said.

“Neither history nor tradition can justify the Commonwealth’s discriminatory exclusion of same-sex couples from marriage,” the lawsuit says.

“As the Supreme Court has made clear, the law cannot, directly or indirectly, give effect to private biases. Liberty and equality, not moral disapproval, must be the guiding framework for a state’s treatment of its citizens,” the suit says.

Lawyers working on the suit said they view the litigation as part of a nationwide effort to end restrictive laws and amendments.

“This is one America. It’s time for the freedom to marry to come to the South,” said Greg Nevins of Lambda Legal. “We do not want a country divided by unfairness and discrimination. Same-sex couples are in loving, committed relationships in every region of our nation and should be treated the same way, whether they live in Maine or Virginia.”

The case, Harris v. McDonnell, is the second lawsuit filed recently in Virginia challenging the state's same-sex marriage ban. Last month a gay couple in Norfolk asked a state judge to declare the Virginia restrictions on same-sex marriage unconstitutional.

Timothy Bostic and Tony London argued in their suit that the restrictions violate their right to equal treatment and equal access to government benefits associated with marriage, such as the ability to file joint tax returns, beneficiary designations for Social Security, and US Navy disability benefits.

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