A federal court in Harrisonburg on Friday certified a lawsuit challenging Virginia’s ban on same-sex marriage as a class action, extending the scope of the plaintiffs represented to same-sex couples statewide who cannot legally marry or whose out-of-state marriages are not recognized in the commonwealth.
The class action certification has an important symbolic and actual effect, said Carl Tobias, a professor at the University of Richmond School of Law.
“It underscores the impact of the ban on individual Virginians and it affords the plaintiffs greater flexibility to argue that the ban violates the federal Constitution,” Tobias said.
“You open it up to all kinds of other impacts and people and a whole range of benefits that are denied to same-sex couples — from health care to death benefits to adoption. It definitely makes a more compelling case to show the various ways citizens can be harmed,” he said.
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The American Civil Liberties Union of Virginia filed the suit in August on behalf of two same-sex couples — Joanne Harris and Jessica Duff of Staunton and Christy Berghoff and Victoria Kidd of Winchester.
“We want to be clear that we’re fighting for families across the state,” said Claire Guthrie Gastañaga, the executive director of the ACLU of Virginia.
Similar to a case pending in federal court in Norfolk, the suit in Harrisonburg argues that through the 2006 amendment to the Virginia Constitution defining marriage as between a man and a woman, the state sent a “purposeful message that lesbians, gay men and their children are viewed as second-class citizens who are undeserving of the legal sanction, respect, protections and support that heterosexuals and their families are able to enjoy through marriage,” according to the ACLU.
The court’s ruling comes as Virginia’s same-sex marriage ban is under increased scrutiny.
Last week, new Attorney General Mark R. Herring announced that he finds that the Virginia amendment — which 57 percent of Virginia voters backed in a 2006 referendum — violates the 14th Amendment of the U.S. Constitution.
Herring also said he would side with the plaintiffs in Bostic v. Rainey, a potentially landmark case before the federal court in Norfolk in which two same-sex couples seek to overturn the same-sex marriage ban.
Bostic v. Rainey has received more media attention nationally, in part because the legal team representing the plaintiffs — David Boies and Theodore B. Olson — is the same that argued California’s Proposition 8 case before the U.S. Supreme Court last summer.
The Harrisonburg and Norfolk suits were filed after the U.S. Supreme Court in June struck down part of the federal Defense of Marriage Act preventing gay couples from receiving federal benefits available to married people.
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