U.S. District Judge Robert C. Chambers ruled on January 29 that three same-sex couples may pursue their lawsuit claiming that West Virginia’s ban on same-sex marriage violates the federal constitution. However, expressing concern that the suit against two county clerks might not result in effective statewide relief, the court gave the plaintiffs until February 12 to either seek joinder of additional state officials if necessary to achieve that goal or to submit an argument as to why the existing defendants are sufficient for that purpose. Chambers rejected the argument that the Supreme Court’s 1972 ruling in Baker v. Nelson, the old Minnesota same-sex marriage case, would preclude this lawsuit, but accepted an argument by attorneys for the state, which had intervened as a defendant, that the plaintiffs lack standing to challenge a West Virginia statute denying recognition to out-of-state same-sex marriages. On this point, however, Judge Chambers gave the plaintiffs the opportunity to amend their complaint to add more plaintiffs if necessary to create standing on that issue. McGee v. Cole, 2014 U.S. Dist. LEXIS 10864 (S.D.W.Va., Jan. 29, 2014).
The plaintiffs, represented by Lambda Legal, are three same-sex couples and a child being raised by one of the couples. They claim that West Virginia’s laws banning the performance or recognition of same-sex marriages violate their 14th Amendment rights. They filed suit in the U.S. District Court for the Southern District of West Virginia in Huntington, against two county clerks who had denied marriage licenses. They did not name any state officials as defendants, but the state, invoking its rights under a federal jurisdictional statute, moved to intervene to defend the constitutionality of the statute.
After pre-trial motions had been filed, Lambda submitted to the court a “notice of supplemental authority” on January 3, attaching copies of the recent marriage equality decisions from Utah and Ohio, together with arguments based on those cases. The first issue Judge Chambers dealt with in his opinion was whether to “strike” these materials as improperly filed. He pointed out that he was going to read those cases in any case, so there was no need to strike the notice, but he would not read the arguments because the rules precluded submitting these materials without getting advance permission from the court.
Moving to a more important issue that has not been previously discussed to any great extent in same-sex marriage litigation, Judge Chambers considered the defendants’ contention that he should abstain from deciding this case under the “domestic relations exception” to federal jurisdiction. The Supreme Court has developed this exception in a series of cases dating back to the 19th century, taking the view that federal courts should generally not get involved with deciding divorce, custody and alimony issues, which entirely involve state law, and the defendants noted that the Supreme Court had advised abstention when a case presents “difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar.” Chambers rejected this argument, writing that he “believes that this reading of the domestic relations exception is too expansive.” He observed that the prior case relied upon by defendants indicated that “abstention would be appropriate when disposition of the federal case depends on a state court’s decision about how state domestic relations law should be interpreted and applied. The instant case, however, does not present such a situation.” To Chambers, there was no serious interpretive problem presented by the challenged statutes: they clearly state that same-sex couples can’t be married in West Virginia, and the state will not recognized their marriages if contracted out-of-state.
He also rejected the idea that issuing a federal court decision would be “disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern,” another ground for abstention. The defendants argued that pending bills in the legislature to establish civil unions or to present the voters with a constitutional amendment to ban same-sex marriage show that state efforts to deal with this question are under way. “Defendants point to no cases,” wrote Chambers, “suggesting that legislative efforts to define domestic relations justify federal court abstention,” and he also pointed out that no marriage equality cases are pending in the state courts.
However, he did find merit to an argument by one of the clerks that “if the marriage ban is struck down, only clerks in Kanawha and Cabell Counties will be impacted, resulting in confusion and the lack of a uniform policy regarding same-sex marriages across West Virginia.” He pointed out that in the Utah case, the plaintiffs had sued the governor, the attorney general, and the Salt Lake County Clerk. Even though the state had intervened as a party, he was not certain that this was “sufficient to support jurisdiction and create certainty as to this case’s effect on all clerks across West Virginia’s two federal districts.” Although he did not find this sufficient to justify dismissing the case at this point, he decided to reserve judgment on the question, giving the plaintiffs time to either seek to join more defendants or present a more substantial argument on the point. This was a broad suggestion that Lambda either seek to certify a class action naming all the West Virginia County Clerks, or identify and join as defendants particular state officials with supervisory or administrative authority over the marriage laws, just to pin down this point.
Turning to more substantial issues, Judge Chambers found persuasive the recent decisions by Judge Shelby in Utah and Judge Kern in Oklahoma finding that Baker v. Nelson has been superseded by doctrinal developments, most pointedly U.S. v. Windsor. He rejected with little discussion the contention that plaintiffs had failed to state a legal claim because “there is no controlling case law that invalidates West Virginia’s marriage ban.” As a practical matter, that will always be true of a case of “first impression” in a jurisdiction. He also was not ready to dismiss on the argument that the law was presumptively constitutional, which implies that he is open to the argument that “heightened scrutiny” might apply to this case.
However, plaintiffs stumbled on the issue of standing to challenge the West Virginia law that bans recognition of out-of-state marriages. None of the plaintiffs have already married in another jurisdiction, and, apart from papers filed during motion practice, did not allege in their complaint that they would seek to marry outside West Virginia if they could not do so in the state but could have their out-of-state marriages recognized. Despite various arguments attempting to construct a personal interest for the plaintiffs in having a determination on the marriage recognition issue, and Judge Chambers’ acknowledgment that it would be more efficient to decide the fate of both marriage provisions in one proceeding, he concluded that the present plaintiffs do not have “standing” to maintain the challenge under federal jurisdictional rules. Thus, he granted the state’s motion to dismiss the challenge to the recognition statute.
However, Judge Chambers did give the plaintiffs until February 12 to file an amended complaint, implying that if they can find suitable plaintiffs (West Virginia same-sex couples who have married out of state and have been denied some right or benefit because of the marriage recognition statute) they might be able to revive this part of their claim.
Having disposed of the motion to dismiss, Chambers indicated that he would soon proceed to decide Lambda’s pending motion for summary judgment on those claims remaining. Since he had directed Lambda to file something in response to the concern about statewide effect of an order, he gave the state more time to file its briefs in response to Lambda’s summary judgment motion. (That deadline had been held in abeyance while the court was considering the motion to dismiss.)
Of course, Judge Chambers gave no indication about his thoughts on the ultimate merits of the case, but it appears that this case may be moving quickly to a summary judgment ruling, perhaps vying with the pending case in the Eastern District of Virginia to see which will be first to hit the 4th Circuit Court of Appeals. Oral argument had been scheduled for January 30 in the Virginia case, but was postponed by the judge due to inclement weather, to be rescheduled shortly.Tags: McGee v. Cole, U.S. District Court for the Southern District of West Virginia, U.S. District Judge Robert Chambers, West Virginia marriage equality, West Virginia same-sex marriage