January 31, 2014 | by Michael K. Lavers
Virginia same-sex marriage lawsuit certified as class action

Victoria Kidd, Christy Berghoff, Winchester, Virginia, ACLU, same-sex marriage, gay marriage, marriage equality, gay news, Washington Blade

Victoria Kidd and Christy Berghoff of Winchester, Va. (Photo courtesy of the ACLU)

A federal judge on Friday certified a lawsuit that two lesbian couples from the Shenandoah Valley filed against Virginia’s same-sex marriage ban as a class action.

Judge Michael F. Urbanski of the U.S. District Court for the Western District of Virginia in Harrisonburg ruled any same-sex couple in the commonwealth who is not married or legally exchanged vows in another jurisdiction can join the women’s lawsuit.

The American Civil Liberties Union, Lambda Legal and the ACLU of Virginia last August challenged the state’s constitutional amendment that defines marriage as between a man and a woman on behalf of Christy Berghoff and Victoria Kidd of Winchester and Joanne Harris and Jessica Duff in Staunton.

Berghoff and Kidd, who have been together for more than nine years and are raising their young daughter, married in D.C. in 2011. Harris and Duff, who have also been together for nearly a decade and are raising a 4-year-old son, tried to apply for a marriage license in Staunton Circuit Court last July.

“It’s about protecting our family,” said Kidd during a meeting she and other LGBT Virginians attended with state Sen. Jill Holtzman Vogel (R-Fauquier County)’s staffers in Richmond on Jan. 28 that coincided with Equality Virginia’s annual lobby day. “Right now we are separated from so many protections that are enjoyed by other families and we fundamentally don’t feel that the state should be defining family for us.”

Oral arguments in a second lawsuit that two same-sex couples – Timothy Bostic and Tony London of Norfolk and Carol Schall and Mary Townley of Richmond – filed against the commonwealth’s marriage amendment last year will take place in the U.S. District Court for the Eastern District of Virginia in Norfolk on Tuesday.

Urbanski excluded the plaintiffs in the Bostic case from the class action lawsuit.

“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.”

Attorney General Mark Herring last week announced he will not defend the marriage amendment that Virginia voters in 2006 approved by a 57-43 percent margin.

A Virginia House of Delegates committee on Jan. 24 approved a bill state Dels. Bob Marshall (R-Prince William County) and Todd Gilbert (R-Shenandoah County) introduced that would allow any state lawmaker to defend a law if the governor and attorney general decline to do so. Pat Mullins, chair of the Republican Party of Virginia, is among those who have said Herring should resign if he refuses to defend the state’s gay nuptials ban.

Gov. Terry McAuliffe on Jan. 27 said he would not appoint a special counsel to defend the marriage amendment after Marshall and 29 other state lawmakers asked him to do so.

Herring’s spokesperson, Michael Kelly, referred the Washington Blade to the attorney general’s previous comments on the state’s same-sex marriage ban when asked about Urbanski’s order.

“This is a key issue that the [U.S.] Supreme Court is going to have to decide,” Herring told the Blade during a Jan. 23 interview. “If the facts were presented to the Supreme Court, they would strike it down. And it’s important that Virginia be on the right side of history and on the right side of the law.”

Michael K. Lavers has been a staff writer for the Washington Blade since May 2012. The passage of Maryland's same-sex marriage law, the HIV/AIDS epidemic, the burgeoning LGBT rights movement in Latin America and the consecration of gay New Hampshire Bishop V. Gene Robinson are among the many stories he has covered since his career began in 2002. Follow Michael

1 Comment
  • I'm more convinced than ever that this is the challenge to a state ban on same-sex marriage that will ultimately reach the U.S. Supreme Court — if for no other reason than history. It was, after all, Virginia's ban on interracial marriages that was struck down by the Supreme Court in 1967 — and I just cannot see how the Loving v. Virginia decision won't be cited in this case.

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