Attaining same-sex marriage and equal rights for the Lesbian,
Gay, Bisexual and Transsexual (LGBT) community in West Virginia
Virginia's history of same-sex
In a surprise move, the U.S. Supreme
brought marriage equality to W. Virginia.
2009 to 2014-OCT-05: The path to recognition of same-sex relationships in West Virginia:
- 2000: The West Virginia marriage law restricted marriage to the union of one woman and one man. Loving, committed same-sex couples in the state are considered "legal strangers." This is a legal term meaning that the government does not recognize their relationship. They are considered as mere roommates. Same-sex couples who were legally married in another state are considered legal strangers as well.
- 2009: The Legislature started the process of amending the state constitution to ban same-sex marriage. It did not succeed.
- 2010: A second attempt to amend the state constitution also failed.
- 2011: A bill to legalize civil unions stalled permanently.
- 2013-OCT: A lawsuit titled McGee v. Cole was filed in U.S. District Court for W. Virginia by Lambda Legal -- a national pro-LGBT equality group. Plaintiffs included three same-sex couples and one of their children. They initially had two goals: to change the marriage statute so that same-sex couples could marry within the state, and to require the state to recognize legal same-sex marriages that had been solemnized out-of-state. The second goal was later dropped, because all of the plaintiffs were unmarried; none of them had been married elsewhere.
- 2014-JUN-10: District Judge Robert C. Chamber ordered a stay of procedures for McGee v. Cole until the ruling of a very similar case from Virginia called Bostic v. Schaefer was issued.
- 2014-FEB: The plaintiffs in Bostic won in District Court. The state appealed the case to the 4th Circuit Court of Appeals.
- 2014-JUL: The 4th Circuit Court issued its ruling in Bostic, upholding the District Court's ruling. This ruling was stayed so that same-sex couples were unable to marry in Virginia. The case was then appealed to the U.S. Supreme Court.
2014-OCT-05: Status of same-sex marriage in West Virginia and in the rest of the U.S.:
As of this date, same-sex couples could routinely obtain marriage licenses and subsequently marry in 19 states and the District of Columbia. West Virginia was not one of these states. The only recognition that West Virginia offered such couples was visiting privileges at medical facilities.
At that time, about 45% of Americans lived in areas of the country where same-sex couples could marry. There were 31 states where same-sex marriage was not permitted either due to statutes passed by their state Legislatures as in West Virginia, or more likely, by amendments to the state Constitutions passed by the voters. 1 There were about 70 active lawsuits seeking marriage equality in various states. There was at least one active lawsuit in each of these 31 states that were banning same-sex marriages.
Three-judge panels at a total of three U.S. Circuit Court of Appeals had recently issued rulings for four of these lawsuits affecting five states. One of these lawsuits was Bostic v. Schaefer from Virginia. Three decisions were by a 2:1 vote; the remaining one was unanimous. All four rulings were in favor of legalizing marriage equality. All were appealed to the U.S. Supreme Court for a final ruling.
Media commentators at the time debated what the response of the U.S. Supreme Court might be. The Justices could grant certiorari -- decide to accept an appeal -- of none of the cases, of one case, or of a group of cases. The near universal consensus was that the high Court would select one or two cases, announce their decision to grant certiorari in late 2014, hold hearings in the Spring of 2015, and announce their ruling in late 2015-JUN. Commentators speculated whether the high court's eventual decision would make marriage available to same-sex couples across the entire country.
In 1967, the U.S. Supreme Court did just that in another marriage-related case, Loving v. Virginia. The high court then made interracial marriages available throughout the U.S. At the time, polls showed that 72% of adults in the U.S. opposed
interracial marriage. Also, 48% felt that marrying a person of another race should
be prosecuted as a criminal act. The public is far more supportive of same-sex marriage now than they were supportive of interracial marriage in 1967. National polls have consistently shown majority support for same-sex marriage since 2011.
2014-OCT-06: The surprise decision by the U.S. Supreme Court that indirectly affected South Carolina and five other states:
This time, the U.S. Supreme Court marched to a different drummer.
On OCT-06, the high Court announced that it would not grant certiorari to any of the four lawsuits from three Circuit Courts of Appeals. 2 The four lawsuits involved were from five states:
- Virginia which is under the juridsiction of the 4th Circuit Court of Appeals in the Eastern U.S. Other states in this Circuit Court are West Virginia, along with Maryland, North Carolina, and South Carolina.
- Utah and Oklahoma which are under the juridsiction of the 10th Circuit Court of Appeals in the Midwest and West. Other states in this Circuit Court are Colorado, Kansas, New Mexico, Oklahoma, and Utah.
- Indiana and Wisconsin which are under the juridsiction of the 7th Circuit Court of Appeals in the Midwestern U.S. Illinois is also in this Circuit Court.
Same-sex marriage thus became final and the stays were lifted in all five states involved in the four lawsuits: Virginia, along with Indiana, Oklahoma, Utah, and Wisconsin with the stroke of a pen.
Some minor housekeeping tasks were quickly cleaned up, and same-sex couples in these five states were able to start purchasing their marriage licenses, either on Monday, OCT-06 or -- in the case of residents of Indiana -- on the next day.
Having same-sex marriage suddenly come to five additional states over a 48 hour interval had never happened before in U.S. history. Same-sex couples could now marry in any of 24 states or the District of Columbia. This was very close to forming a majority of jurisdictions in the U.S. that had attained marriage equality. Some pro-marriage equality groups considered that once a majority of states attained marriage equality, and a majority of Americans lived in states with marriage equality, and national support for same-sex marriage exceeded 60% then the U.S. Supreme Court would likely make marriage equality the law of the land in all 50 states.
Reactions by the Lesbian, Gay, Bisexual and Transgender community (LGBT) were mixed. There was much joy that marriage equality had come to loving, committed couples in five more states. The Internet was flooded with pictures of many happy couples. Some were holding their marriage licenses; others were getting married; still others were kissing. But the community was also saddened that there was now no possibility that the Supreme Court would rule marriage by same-sex couples to be legal across the entire country in mid-2015.
Religious and social conservatives were generally shocked at this sudden development. There were many references to lawless courts, to rogue judges, and to courts, Attorneys General, and Governors ignoring the will of the people. The latter was a reference to amendments to state constitutions that had banned marriage equality and were now found unconstitutional because they violated the due process and equal protection clauses of the 14th Amendment to the U.S. Constitution. There were calls for Congress to initiate a new amendment to the U.S. Constitution so that these two clauses longer applied to marriages. That would allow the voters in individual states to amend their state constitution to ban marriage for any group that was disfavored by a simple majority of voters, and have their amendments found constitutional by the courts. This is called the "tyranny of the majority." Preventing that was a major concern of the founding fathers of the U.S.
The affects of the U.S. Supreme Court's decision on OCT-06 went far even further than directly affecting five states: Indiana, Oklahoma, Utah, Virginia, and Wisconsin. It also indirectly affected six more states. When a ruling of a Circuit Court becomes final, it normally becomes applicable to all of the other states under the jurisdiction of the same Circuit Court. This would imply that same-sex couples in six other states with same-sex marriage bans, who were also under the jurisdiction of the 4th, 7th, and 10th Circuit Courts, should be allowed to marry. These states are West Virginia, along with Colorado, Kansas, North Carolina, South Carolina, and Wyoming. These will take a bit of time to sort out, because some of the legislators, Attorneys General and/or Governors in these states are strongly opposed to marriage equality.
The ripple effect of the Supreme Court's decision of OCT-06 is a game-changer, It impacted five states directly. It either has or is expected to bring marriage equality to six other states indirectly. It is also expected to influence additional states as various federal courts take notice of the trend towards marriage equality in their own rulings elsewhere in the country.
As of 2014-OCT-24, the Kansas and South Carolina goverments were still resisting the decision of the Supreme Court by defending their same-sex marriage bans.
How West Virginia and five other states became affected by the U.S. Supreme Court's decision:
When, as in this situation, a decision by a federal Circuit Court of Appeals becomes final, then the ruling directly affects the state from which the lawsuit originated. It may or may not also affect other states under the jurisdiction of the same Circuit Court.
For example, consider an environmental lawsuit that originated in Utah and involves a species of fish found only in large salt water lakes. A ruling by the 10th Circuit Court of Appeals that became final would directly affect Utah because of its Great Salt Lake. However, it would not affect the other five states under the jurisdiction of the 10th Circuit Court of Appeals: Colorado, Kansas, New Mexico, Oklahoma, or Wyoming -- because they have no large salt lakes within their borders.
However, since the lawsuit that originated in Utah involved marriage equality, then it would probably affect marriage laws in the other five states over which the 10th Circuit Court has jurisdiction. This is because there is no real difference in same-sex couples in these states:
- Since about 5% of the newborns in every state will grow up to find that they are gay or lesbian, and
- Since about another 5% of newborns in every state will find out later in life that they are bisexual, and
- Since most people are social beings,
- Then, a small but significant minority of people in every state will probably fall in love with a member of the same sex, will want to make a lifelong commitment to that person, and marry them.
Thus the nature of same-sex marriages in Utah is identical to that in the other five states under the jurisdiction of the 10th Circuit Court of Appeals.
It was considered by many commentators to be probable that the 4th Circuit Court of Appeals' final decision on marriage equality in Virginia will also be found to be binding on West Virginia, as well as North Carolina, and South Carolina. (Maryland had previously legalized same-sex marriage). Over the next week, it became obvious which states will gracefully accept marriage equality by this path and which ones will enthusiastically fight to retain marriage inequality.
For the same reasons, it was probable that same-sex marriage would be legal in all states handled by the 7th Circuit Court of Appeals in the great lakes region, and the 10th Circuit Court of Appeals in the midwest
When the smoke clears, most expect that the U.S. Supreme Court's decision on OCT-06 might increase the number of states attaining marriage equality from 19 to about 30. That is, all couples, whatever their gender makeup, will be able to marry -- assuming that they meet age, financial, and genetic closeness requirements -- in 60% of the states in the U.S. plus the district of Columbia.
Many religious and social conservatives in West Virginia undoubtedly believe that this indirect approval of marriage equality is unfair to them. It will happen simply because West Virginia is under the jurisdiction of the 4th Circuit Court of Appeals. When the boundaries of the 3rd, 4th, and 6th Circuit Courts of Appeals were drawn many decades ago, West Virginia could have easily end up in either the 3rd or 6th Circuit Court. Then, West Virginia would not have been affected by the decision of the 4th Circuit Court in the Virginia case.
2014-OCT-09: West Virginia became theth state to attain marriage equality.
West Virginia Attorney Genera Patrick Morrissey (R) and Governor Earl Ray Tomblin (D) agreed to stop defending the state's discriminatory marriage ban. This means that clerks in the state started to issue marriage licenses to same-sex couples and the state subsequently registered the marriages. They recognized that when the U.S. Supreme Court refused to hear an appeal of the Virginia case -- Bostic v. Schaefer, that the 4th Circuit Court's ruling in that case became final. The finding in that case -- that bans on marriages by same-sex couples violates the 14th Amendment to the U.S. Constitution -- is also binding on any of the other states under the jurisdiction of the 4th Circuit Court that had a ban in place. That includes West Virginia.
Attorney General Patrick Morrissey (R) said:
"As the state’s Attorney General, it is my duty to defend state laws that have been passed by the state Legislature and are consistent with the Constitution. We have discharged this duty faithfully. In the upcoming days, we will now seek to bring to a close the pending litigation over West Virginia’s marriage laws, consistent with the Fourth Circuit’s now-binding decision." 2
West Virginia's Governor Earl Ray Tomblin (D) said:
"I do not plan to take any actions that would seek to overturn the courts’ decisions. West Virginia will uphold the law according to these rulings, and I have directed state agencies to take appropriate action to make that possible. Our state is known for its kindness and hospitality to residents and visitors alike. I encourage all West Virginians — regardless of their personal beliefs — to uphold our statewide tradition of treating one another with dignity and respect." 2
2014-NOV-07: District Court in West Virginia formally nullifies the state's ban on marriage by same-sex couples:
Chief Judge Robert C. Chambers of the U.S. District Court for the Southern District of West Virginia. Huntington Division issued a ruling in the lawsuit McGee et al. v. Cole et al. 3 This document formally nullified West Virginia's constitutional ban of marriages by same-sex couples.
Judge Chamber's ruling contained an interesting footnote starting at the bottom of Page 16 and continued at the bottom of Page 17. He commented on the NOV-06 decision by the 6th U.S. Circuit Court of Appeals in DeBoer v. Snyder. The ruling concluded that bans on marriages by same-sex couples should not be challenged in the courts, but should be left to public opinion or legislative processes to eventually cause a repeal of the bans. That, of course, could easily take two decades in some conservative states. The footnote reads:
"The Sixth Circuit in DeBoer v. Snyder, ... reached the opposite result. The majority there noted two rationales in support of the marriage bans. ... First, the court found the marriage bans in Kentucky, Michigan, Ohio, and Tennessee to be rooted in the States’ interest in regulating procreation by providing incentives for parents to remain together. ... But the opinion then conceded that this view of marriage can no longer be sustained, that marriage now serves 'another value -- to solemnize relationships characterized by love, affection, and commitment.' ... Denying marital status and its benefits to a couple that cannot procreate does nothing to further the original interest of regulating procreation and irrationally excludes the couple from the latter purpose of marriage. Second, the majority in DeBoer implores opponents of the marriage bans to proceed slowly, through the legislative process, and justifies the bans by asserting the States’ right to take a “wait and see” approach. ... This approach, however, fails to recognize the role of courts in the democratic process. It is the duty of the judiciary to examine government action through the lens of the Constitution’s protection of individual freedom. Courts cannot avoid or deny this duty just because it arises during the contentious public debate that often accompanies the evolution of policy making throughout the states. Judges may not simultaneously find a right violated yet defer to an uncertain future remedy voluntarily undertaken by the violators."
That appears to a successful end the 14 year
program to bring marriage equality to West Virginia
The following information source was used to prepare and update the above
essay. The hyperlink is not necessarily still active today.
- "High court ruling may lead to gay marriage in 30 states," USA Today, 2014-OCT-06, at: http://www.usatoday.com/
- "The freedom to marry comes to West Virginia,"2014-OCT-09, at: http://www.freedomtomarry.org/
- Ruling in McGee et al. v. Cole et al., U.S. District Court for the Southern District of West Virginia. Huntington Division, 2014-NOV-07, at: http://sblog.s3.amazonaws.com/
Copyright © 2014 by Ontario Consultants on
Originally published: 2014-OCT-16
Last updated 2014-OCT-17
Author: Bruce A Robinson