The Times West Virginian

October 23, 2013

West Virginia clerk seeks delay in gay marriage lawsuit

By Vicki Smith
Associated Press

MORGANTOWN — The clerk of West Virginia’s biggest county says she needs more time to respond to a lawsuit over the state’s ban on same-sex marriages and has asked a judge to postpone her Wednesday deadline.

Kanawha County Clerk Vera McCormick filed a motion Monday in U.S. District Court in Charleston, asking that the deadline for her response be extended.

The national gay rights organization Lambda Legal, based in New York, sued earlier this month, declaring West Virginia’s Defense of Marriage Act a violation of the 14th Amendment of the U.S. Constitution. It filed a similar lawsuit challenging Virginia’s ban on gay marriages in September.

McCormick’s petition says the case involves a constitutional issue that “will have far ranging effects for each and every citizen of the state of West Virginia,” and for the 55 county clerks who currently are required to refuse marriage licenses to same-sex couples.

The response to the lawsuit must be comprehensive and include “any and all defenses,” her attorney wrote. “Certainly, 21 days is not appropriate time to prepare a responsive pleading on issues that will affect the entire state.”

Under federal court rules, the defendants in civil cases have 21 days to respond. McCormick said she asked Lambda Legal’s attorneys to agree to the extension, but they declined.

McCormick also argued that West Virginia Attorney General Patrick Morrisey has the legal right to intervene in the case, so she should get a 60-day extension while she awaits word from him. Her petition notes she has no discretion on whether to grant marriage licenses and no expertise on the legal issues at hand.

“To put the onus on her to file a responsive pleading ... without the knowledge of the attorney general’s position is fundamentally unfair,” the petition says.

Morrisey spokeswoman Beth Ryan said Tuesday that the attorney general’s office is evaluating its options.

Lambda Legal argues the state’s ban unfairly discriminates against same-sex couples and their children. The organization says its clients are denied the legal sanction, societal respect, financial protections and other support that marriage gives to heterosexual couples.

The group also contends the law violates constitutionally guaranteed rights to equal protection under the law and sends a message that gay men, lesbians and their children are second-class citizens “without any compelling, important or even legitimate justification.”

West Virginia doesn’t allow same-sex marriage or recognize those that occurred in other states.

The lawsuit says the Kanawha and Cabell county clerks denied six adults marriage licenses under the state law, and that effectively denies them many benefits that could make their lives easier. Those include shared health insurance, reduction of tax liabilities, family leave, caretaking decision power and death benefits.

The Family Policy Council of West Virginia, which has long battled gay marriage legislation, said lawmakers should respond to the lawsuit “by doing everything in their power to strengthen and defend marriage” as it’s traditionally been defined.

The plaintiffs are partners Casie McGee and Sarah Adkins, and Justin Murdock and Will Glavaris, all of Huntington, and Nancy Michael and Jane Fenton, of St. Albans, and their son, Drew.