Advocates for civil liberties and gay rights filed a federal lawsuit Thursday seeking to overturn Virginia’s ban on same-sex marriage and its refusal to recognize out-of-state marriages by gay couples.
The class-action suit was brought on the same day that Minnesota and Rhode Island became the 12th and 13th states to issue marriage licenses to same-sex couples.
The complaint, filed in U.S. District Court for the Western District of Virginia in Harrisonburg, was made on behalf of two lesbian couples: Joanne Harris and Jessica Duff of rural Staunton, and Christy Berghoff and Victoria Kidd of Winchester in Frederick County near Washington. Each couple has one child.
“Virginia is home for us. Our families are here, our jobs are here, and our community is a great support for us, but it makes us sad that we cannot get married where we live,” Harris, a native Virginian who grew up on a Bedford, Va. pig farm in Bedford, Va., said in a statement.
This is the second federal suit against Virginia’s same-sex marriage ban since the U.S. Supreme Court struck down the part of the federal Defense of Marriage Act that denied gay couples federal benefits available to married couples. The other was filed last month by a Norfolk couple after they were turned away when applying for a marriage license. In 2006, Virginia voters approved a constitutional amendment defining marriage as between a man and a woman.
Brian Gottstein, spokesman for Virginia Attorney General Ken Cuccinelli II (R), declined to comment on pending litigation. But he has said Cuccinelli would defend the state against challenges to the constitutional amendment, unlike attorneys general in states such as Pennsylvania and Illinois.
The lawsuit was filed by the American Civil Liberties Union, the ACLU of Virginia, Lambda Legal and the firm Jenner & Block, a national firm with offices in the District. It argues that Virginia’s law treats gay couples and their children as second-class citizens, denying them rights and protections extended to heterosexual families.
“This is one America,” said Greg Nevins, a senior attorney in Lambda Legal’s Southern Regional Office in Atlanta. “It’s time for the freedom to marry to come to the South.”
The complaint highlights the two couples’ conservative backgrounds as well as what they describe as the ban’s economic and emotional impact on their families.
According to the lawsuit, “Jessi fell in love at first sight with Joanne when they met in 2002 through mutual friends” and “Joanne realized that she wanted to spend the rest of her life with Jessi when Jessi’s grandmother wrapped her in a big hug and welcomed her into the family.”
Their 4-year-old son, Jabari, is Harris’s biological son and refers to Duff as “Momma DeeDee,” or “DeeDee,” the complaint says.
Berghoff is an Air Force veteran, and she and Kidd wed in the District in 2011.
“If Virginia would just respect our marriage from D.C., it would ensure that my spouse and family could access all the benefits I’ve earned,” Berghoff said.
Berghoff and Kidd, who are both 34 and have been together almost a decade, have an 8-month-old daughter, Lydia. The complaint details how after Berghoff gave birth to Lydia last year at Winchester Medical Center, “One nurse was overtly hostile to both Victoria and Christy, delaying service and responding with unkind words so often that the couple felt like they were ‘on their own.’ ”
No Southern state currently allows same-sex marriage. Activists are pursuing litigation in Virginia because it would be cumbersome to overturn the state’s ban legislatively, given that the General Assembly must pass the initiative in two different years before a public referendum.
James Esseks, who directs the ACLU’s Lesbian Gay Bisexual Transgender & AIDS Project, said in an interview that, given the difficulty activists face in getting an initiative on the ballot, “The only recourse we have is to go to court, and in our federal system the courts are there to live up to the promise of equality in our Constitution.”
Carl Tobias, a professor at the University of Richmond law school, said the case is likely to be heard by one of two judges sitting in Roanoke. He said the case stands a chance of succeeding.
“I think a district judge in Virginia could read the language of the DOMA case in a way that would lead to the invalidation of the Virginia ban,” he said.