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Developments in Va., W. Va, Gay Marriage Battles

By William Peacock, Esq. on January 31, 2014 | Last updated on March 21, 2019

Last week, Virginia Attorney General Mark R. Herring announced that he wouldn't defend the state's ban on gay marriage, prompting us to wonder: who else could? We've got our answer.

Meanwhile, in West Virginia, a parallel battle has moved forward, though the plaintiffs will be scrambling to locate an additional plaintiff (or two), after the court questioned the existing plaintiffs' standing to challenge the state's refusal to recognize out-of-state same-sex marriages.

It just goes to show: in the gay marriage battle, standing is still sexy.

Virginia: County Clerks and Lawmakers Step Up

If the Attorney General won't defend the law, who will?

The Clerk of Court for the City of Norfolk and the Clerk of Court for Prince William County, apparently.

While Herring declined to defend the law, as he felt that it was in violation of the U.S. Constitution, Norfolk Circuit Court Clerk George E. Schaefer III argued that "[e]ven if he believed a law was unconstitutional, he must continue enforcement, and that he "intends to continue defending the constitutionality of these laws until they are changed by the legislature or a binding court decision declares them unconstitutional," reports the Daily Press.

That is the fundamental question, isn't it? If you swear to uphold the laws of the state, do you fight for them, even if they seem to conflict with the U.S. Constitution? Are you required to wait until the Supreme Court steps in and clarifies the law?

Herring, like many, believes that the law clearly violates the U.S. Constitution. Schaefer, like many others, thinks that the proper course is to litigate the issue until the law is clarified. Neither side is clearly correct, but declining to defend a law that one disagrees with is a slippery slope.

Besides the two clerks, a sharply divided House committee passed a measure that would allow each member of the General Assembly to intervene and defend a state law when the governor and attorney general decline to do so, reports The Washington Post. There is one more slippery slope.

West Virginia: We're Going to Need More Plaintiffs

Meanwhile, a few miles westward, in Charleston, a federal judge allowed a lawsuit challenging West Virginia's ban on same sex marriage to proceed, with one small caveat: they need more plaintiffs.

The three same-sex couples that are currently involved are all from West Virginia. None are in a legally-recognized marriage from out-of-state. If the plaintiffs want to challenge the state's refusal to recognize out-of-state gay marriages, they'll have to find additional married (in another state) plaintiffs who have standing to challenge the law.

For the plaintiffs' part, their counsel, Karen Loewy, told the West Virginia Gazette that she couldn't see how, if the state was forced to recognize in-state same-sex marriages, it could continue to refuse to recognize out-of-state marriages.

That's not all, either. The judge also wants the plaintiffs to either add more plaintiffs or explain how the existing challenge, which targets two counties, would be enough to force state-wide change. The court noted the confusion that a ruling which only affected two counties would have, but seems to be seeking legal justification for extending any possible ruling state-wide.

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