ACLU, Lambda Legal Announce Virginia Lawsuit

Suit on behalf of two lesbian couples challenges state's ban on same-sex marriage

The American Civil Liberties Union (ACLU), the ACLU of Virginia, Lambda Legal, and the law firm Jenner and Block announced today at a press conference in Harrisonburg, Va., that they would be filing a federal class action lawsuit seeking the freedom to marry for same-sex couples in the commonwealth and the end of Virginia’s refusal to recognize same-sex marriages legally performed elsewhere.

The lawsuit, filed on behalf of two lesbian couples, Joanne Harris and Jessica Duff of Staunton, Va., and Christy Berghoff and Victoria Kidd of Winchester, Va., names Gov. Bob McDonnell (R), in his official capacity as governor, Janet Rainey, the state registrar of vital records, and Thomas Roberts, the Staunton Circuit Court clerk, as defendants.

According to the complaint, Harris and Duff applied for a marriage license on July 29 in Staunton Circuit Court. Roberts rejected the application as it was filed by a same-sex couple. Married in the District of Columbia in 2011, the women are fighting to have their existing marriage recognized by the state.

”Virginia is home for us,” Harris said in a statement to media. ”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.”

”It hits me in the gut that two hours from our house, same-sex couples in Maryland and D.C. can marry,” Harris continued. ”I have a serious medical condition and we’ve had to spend lots of money to try to make sure that Jessi can make decisions for me if there were ever a crisis.”

Berghoff, an Air Force veteran, talked about the inability of her spouse to access her benefits due to Virginia’s refusal to recognize same-sex marriages.

”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.”

Since 2006, Virginia law has banned not only same-sex marriage, but any recognition of same-sex relationships due to the voter-approved Marshall-Newman Amendment that constitutionally banned such recognition by a 57-43 margin. But recent polls have shown that a majority of Virginians support making it legal for gay and lesbian couples to marry.

”More than half of the people of Virginia believe all Virginians should have the freedom to marry the person they love,” Claire Guthrie Gastañaga, executive director of the ACLU of Virginia, said at the Harrisonburg event. ”Every day that same-sex couples in Virginia are denied the freedom to marry, the government sends a message that they are second-class citizens and their families are not worthy of equal dignity and respect.”

The lawsuit will be filed in the U.S. District Court for the Western District of Virginia. In the case, Harris, et al. v. McDonnell, et al, the plaintiffs allege that both of Virginia’s bans on same-sex marriage – via constitution and statute – send a message that lesbians, gay men and their children are viewed as undeserving of the legal sanction, respect, protections and support that heterosexuals and their families are able to enjoy through marriage.

Harris and Duff have been together since 2006 and have a 4-year-old son, Jabari. Berghoff and Kidd have been together 10 years and have an 8-month-old daughter, Lydia.

”This is one America. It’s time for the freedom to marry to come to the South,” Greg Nevins, the supervising staff attorney in Lambda Legal’s Southern Regional Office based in Atlanta, said in a statement released today. ”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 statement also quoted Amanda Goad, staff attorney with the ACLU Lesbian Gay Bisexual and Transgender Project: ”Nationwide, more and more Americans have come to agree that committed same-sex couples should have the freedom to marry and have the same protections as any other married couple. Today’s lawsuit in Virginia is just another step in ensuring that all families have the same rights across the country.”

The ACLU-Lambda Legal lawsuit comes a after a gay male couple filed suit in U.S. District Court for Virginia’s Eastern District, on July 18. In that lawsuit, Bostic et al. v. McDonnell et al., Timothy Bostic and Tony London of Norfolk, Va., are suing McDonnell, Attorney General Ken Cuccinelli and Norfolk Circuit Court Clerk George E. Schaefer following the rejection of their application for a marriage license.

In that complaint, first posted online by the LGBT website Bilerico, the plaintiffs argue that unequal treatment of gays and lesbians denies them ”the basic liberties and equal protection under the law that are guaranteed by the Fourteenth Amendment to the United States Constitution” and deprives same-sex couples of numerous financial benefits associated with marriage. Bostic and London further ask the federal court to ”enjoin, preliminarily and permanently, all enforcement of statutes that seek to exclude gays and lesbians from access to civil marriage and civil union.”

The Bostic case’s legal reasoning rests heavily on the recent decision by the U.S. Supreme Court to strike down Section 3 of the Defense of Marriage Act in United States v. Windsor, as well as Loving v. Virginia, the 1967 Supreme Court case that overturned Virginia’s anti-miscegenation laws.

With respect to the Harris case, Gastañaga told Metro Weekly that it could take a couple of years to hear the case, depending on how quickly the defendants respond the suit. She added that afterward it would likely be appealed to the U.S. Court of Appeals for the Fourth Circuit, and could make its way to the U.S. Supreme Court.

”We fully expect this case to move forward, and we will be litigating whether Virginia law is constitutional or not,” Gastañaga told Metro Weekly.

Equality Virginia, the state’s primary LGBT-equality organization, announced its support for the Lambda Legal-ACLU effort.

”We support the filing of this case on behalf of Joanne Harris and Jessica Duff of Staunton and Christy Berghoff and Victoria Kidd of Winchester, so that all loving couples in Virginia are allowed to marry the person they are in love with and make a life-long commitment,” James Parrish, the organization’s executive director, said in that statement. ”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.”

John Riley is the local news reporter for Metro Weekly. He can be reached at jriley@metroweekly.com