Virginia's Other Gay Marriage Case Given Class-Action Status

Lately, I have given a lot of focus to the pending case of Bostic v. Rainey pending in the U.S. District Court for the Eastern District of Virginia, in part because I know the plaintiffs and because of the recent change in position of the Attorney General's office spearheaded by Mark Herring who the boyfriend and I worked hard to get elected.   But there is another same sex marriage case pending in Virginia that likewise challenges the heinous Marshall-Newman Amendment.  This case, Harris v. Rainey, is pending in the U. S. District Court for the Western District of Virginia and the defendants are again Janet Rainey and also Thomas Roberts, Clerk of the Staunton Circuit Court.  Yesterday the case was given class action status which means that the plaintiffs have been certified to represent (i) all same sex couples who have been barred from marrying in Virginia and (ii) all same sex couples who have married in other jurisdictions who have had recognition of the lawful marriage barred in Virginia.  The approved class excepts out the four plaintiffs in Bostic v. Rainey so that no conflict exists between the two cases continuing on their separate paths through the courts.  The courts ruling can be found here.  The following is a press release from Lambda Legal:

Harrisonburg, Va. - Today, a federal district court in Virginia certified as a class action a lawsuit challenging that state's ban on marriage for same-sex couples, extending the scope of those represented in the lawsuit to all same-sex couples in the state who cannot legally marry or whose legal marriages performed elsewhere are not recognized by the Commonwealth.

The case was initially filed on behalf of two couples by the American Civil Liberties Union, the ACLU of Virginia, Lambda Legal, and the law firm Jenner and Block.

"We want to be clear that we're fighting for families across the state," said Claire Guthrie Gastañaga, executive director of the ACLU of Virginia. "This marriage ban affects families in a number of different ways by denying them the many protections that come with marriage. It's important that our case address the many ways that families are hurt by our discriminatory laws."

The lawsuit was originally filed on August 1, and argued that, through the marriage bans, Virginia sent a purposeful message that lesbians, gay men, and their children are viewed 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.

"We are pleased that the Court has certified this case as a class action. With this certification, all the same-sex couples in Virginia seeking the freedom to marry and those who want Virginia to recognize their marriages have officially become part of the fight against the State's discriminatory constitutional and statutory marriage bans," said Greg Nevins, Counsel in Lambda Legal's Southern Regional Office based in Atlanta.

The couples named originally in the class action case are: Joanne Harris, 38, and Jessica Duff, 33, of Staunton, who have been together since 2006 and have a four-year-old son, Jabari. Christy Berghoff, 34, and Victoria Kidd, 35, who are from Winchester and have been together almost ten years. They have a one year old daughter, Lydia. They married legally in Washington, DC, but their home state does not recognize their marriage.

"The stories of our clients are just a small representation of the thousands of stories across the country in states like Virginia that deny same-sex couples the freedom to marry," said Joshua Block, staff attorney with the ACLU Lesbian Gay Bisexual and Transgender Project. "We're glad that this case will apply to all Virginians who wish to make a lifelong commitment to each other, and hope that Virginia will follow the 17 other states that have preceded it in granting marriage equality."

As in Bostic v. Rainey, Attorney General Mark Herring  has indicated that he will cease to defend Virginia's unconstitutional same sex marriage bans.  As of yesterday, the Court in Harris v. Rainey has ordered a status conference to determine where the case goes from here given the changed position of the Office of the Attorney General.  This order can be found here.  Interestingly, the order states:

On January 29, 2014, Roberts filed a supplemental response to plaintiffs' motion for summary judgment (Dkt No. 113).  Roberts states that he takes no position on the constitutionality of Virginia's marriage laws, but notes that he is constrained to abide by them until otherwise directed by an appropriate authority.

Unlike the situation in Bostic v. Rainey with the Prince William Clerk of Court, who is represented by the religious extremists of the Alliance Defending Freedom, Roberts is represented by a private law firm.  Moreover, The Family Foundation has not filed an amicus brief nor have the delusional five professors who challenge the truth of the APA position on gay parenting.   One can only assume that the Christofascists must be scrambling in terror that Harris v. Rainey has the potential to suddenly leap ahead of Bostic v. Rainey in striking down Virginia's same sex marriage bans.