CHARLESTON - The West Virginia Attorney General Office's and Kanawha County Clerk Vera McCormick have asked a federal judge to dismiss a lawsuit challenging the state's ban on gay marriage.
The Attorney General's Office contends that the plaintiffs have no legal basis to challenge the law, while McCormick's lawyer, Chuck Bailey, says the matter should be handled by the state's legislative process.
They filed separate motions seeking the lawsuit's dismissal this week in U.S. District Court in Huntington, the Charleston Gazette reported Thursday.
New York-based gay rights group Lambda Legal contends West Virginia's Defense of Marriage Act violates the 14th Amendment of the U.S. Constitution. It filed the lawsuit in U.S. District Court in Huntington in October on behalf of three same-sex couples and the child of one couple.
The lawsuit says the Kanawha and Cabell county clerks denied the 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.
A dismissal motion filed by Assistant Attorney General Julie Ann Warren says the law does not cause the plaintiffs any immediate harm.
"The statute causes no concrete and immediate injury to Plaintiffs, who allege only the desire to marry each other in West Virginia and have not alleged that they are or intend to be married in another State," the motion states.
"Plaintiffs do not allege that they have valid marriages from other jurisdictions, that they have taken any steps to obtain valid marriages from other jurisdictions, that they intend to be married in other jurisdictions, or that they would have obtained a valid marriage from another jurisdiction if West Virginia recognized out-of-state same-sex marriage."
Bailey's motion says the matter belongs to the state.
"McCormick prays this court will presently abstain from ruling on this issue, particularly in light of the upcoming legislative session" his motion states.
Attorney General Patrick Morrisey intervened in the lawsuit in November to defend the law.
In June, the U.S. Supreme Court struck down a key piece of the federal Defense of Marriage Act, ruling that same-sex couples who are legally married are entitled to federal benefits.