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Hearing held in lawsuit challenging Virginia’s same-sex marriage ban

Tuesday, October 29, 2013
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HARRISONBURG, Va. — A federal judge heard arguments Tuesday on whether to certify as a class action a lawsuit challenging Virginia’s same-sex marriage ban.

U.S. District Judge Michael Urbanski also heard motions to dismiss Gov. Bob McDonnell and Staunton Circuit Court Clerk Thomas E. Roberts as defendants. The other defendant is Janet Rainey, the state registrar of vital records.

ACLU Virginia
Christy Berghoff and Victoria Kidd

ACLU Virginia
Joanne Harris and Jessi Duff

According to court records, Urbanski did not immediately rule on the motions.

Aisha Michel of the ACLU of Virginia, which is representing the plaintiffs along with Lambda Legal, said the judge did not say when he would issue an opinion. Urbanski also canceled a Jan. 3 hearing on other issues that would have provided the first arguments on the merits of the case, saying he would reschedule it if necessary.

Two couples form the Shenandoah Valley, Joanne Harris and Jessica Duff of Staunton and Christy Berghoff and Victoria Kidd of Winchester, filed the lawsuit on August 1.

They claim Virginia’s constitutional amendment prohibiting gay marriage and denying recognition of such unions sanctioned by other states violates the equal protection and due process clauses of the Constitution.

The plaintiffs say in the lawsuit that they are seeking to represent all same-sex couples in Virginia who want to get married or have already married in other jurisdictions. About three dozen states do not allow same-sex marriage, and Virginia is one of 29 states that have put the ban in their constitutions.

Earlier in the summer, the U.S. Supreme Court struck down a provision of the federal Defense of Marriage Act that denied federal benefits to married gay couples. The justices also left intact a lower court ruling overturning California’s gay marriage ban. That decision was based on a legal technicality and did not address the law’s constitutionality.

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Virginia voters approved the same-sex marriage ban 57 percent to 43 percent in 2006.

Brian Gottstein, a spokesman for Attorney General Ken Cuccinelli, has said the office does not comment on pending litigation. However, after the Supreme Court rulings in June, he said the office “will continue to defend challenges to the constitution and the laws of Virginia.”

The ACLU has said its goal is to legalize gay marriage in at least 20 states by the end of 2016.

The lawsuit in Harrisonburg is the second one seeking to overturn Virginia’s ban. A Norfolk couple filed a lawsuit in federal court in July.

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