Second Lawsuit Filed Against Virginia’s Same-Sex Marriage Ban


Just last week, I noted that a couple in the Tidewater area had filed suit against Virginia’s ban on same -sex marriage, now that lawsuit has been followed up by a second suit by two couples living further west in the state:

The American Civil Liberties Union, the ACLU of Virginia, Lambda Legal and the firm Jenner and Block filed a federal class action lawsuit Thursday challenging Virginia’s ban on same-sex marriage and the state’s refusal to recognize out-of-state marriages by gay couples.

The suit comes on the same day that Minnesota and Rhode Island became the 12th and 13th states to start issuing marriage licenses to same-sex couples.

The groups filed the suit in U.S. District Court for the Western District of Virginia on behalf of Joanne Harris and Jessica Duff of Staunton and Christy Berghoff and Victoria Kidd of Winchester, and seeks to represent all same-sex couples who are seeking marriage rights in the state.

“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,” said Joanne Harris, a native Virginian who grew up on a Bedford, Va. pig farm, in a statement.

Harris noted that she has “a serious medical condition” and because the couple is not legally married, “We’ve had to spend lots of money to try to make sure that Jessi can make decisions for me if there were ever a crisis.”

Virginia attorney general Ken Cuccinelli spokesman Brian Gottstein said  the office does not comment on pending litigation. But he has stated in the past Cuccinelli would defend the state’s 2006 constitutional amendment unlike attorneys general in some states, such as Pennsylvania and Illinois.

“Virginia has followed the traditional definition of marriage as being between one man and one woman for more than 400 years, and Virginians voted overwhelmingly to add this traditional definition to their constitution,” Gottstein said in a June 26 statement, after the Supreme Court issued its same-sex marriage rulings. ”Consistent with the duties of the attorney general, this office will continue to defend challenges to the constitution and the laws of Virginia.”

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.” It said the two share “a commitment to their Christian faith” and were baptized together in 2006 “in the backyard river of a fellow church member.”

Their four year-old son Jabari, the complaint says, is Harris’s biological son and refers to Duff as ”Momma DeeDee,” or “DeeDee.”

“He is proud of their family, but even at the age of four is very aware that his parents cannot marry,” the suit states. “A picture from their commitment ceremony hangs in their home, and [Jabari] points to it and says to others, ‘Mommy and Momma DeeDee got married, and they need to really get married.'”

Berghoff is an Air Force veteran, and she and Kidd, who were raised as Jehovah’s Witnesses, got legally married in the District.

“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 eight-month-old daughter named 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'” even after Kidd requested medical attention for Berghoff.”

“Victoria and Christy believe this kind of experience would be far less common for same-sex couples if the Commonwealth recognized the equal dignity of their relationships,” the complaint states.

No Southern state allows same-sex marriage at this point; activists are pursuing litigation in Virginia because it would be difficult to overturn the state’s ban legislatively, given that the the General Assembly must pass the initiative in two different years with an election for the House of Delegates in between before it can be voted on by the public in a referendum.

This case will likely move in tandem with the case filed last week, although the faster docket in the Eastern District of Virginia may mean that we get a decision in that case first. In either case, though, both cases are ultimately headed for the Fourth Circuit Court of Appeals and, potentially, the U.S. Supreme Court itself and are likely to be tied together once they get to the appellate level. These two Virginia lawsuits are not the only challenges to same-sex marriage bans to be filed recently. Last week, there was also a lawsuit filed in Kentucky challenging that states ban on same-sex marriage.

You can read the Complaint filed in the new Virginia lawsuit here, and the Complaint filed in the Kentucky lawsuit here.

FILED UNDER: Law and the Courts, US Politics, , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. Barry says:

    I have a picture of these bans flying around, with puffs of ack-ack,….sooner or later each one takes some hits, and falls in flames.

  2. JohnMcC says:

    Of course, if Mr Cuccinelli got all his d’ruthers, they’d be in jail for sodomy.

  3. JohnMcC says:

    @Barry: When I read your comment, my friend, my brain made the word ‘bans’ into the word ‘banns’ and I had to look a second time (and find my bifocals) to understand your metaphor. Which made me want to make some sort of pun. But I couldn’t come up with one. Still, the fact of a ‘ban on banns crashing and burninng’ seemed worth noting.

  4. HarvardLaw92 says:

    Excellent news. They are building the groundwork for a concerted challenge to Section 2 of DOMA. That is the last brick left standing in the wall.

  5. Laurence Bachmann says:

    @HarvardLaw92:yes, but I think it is a tougher case to win. Kennedy was not willing to strike down a voter approved proposition that returned CA to traditional marriage–even with the out that they lacked standing. Given his reluctance to do so I don’t see how he can be counted on to force MS to recognize a NY marriage. He could just as easily say if the NYers want the benefit of marriage, stay where you are or move to a SSM state.

    Striking down section Section 2 isn’t the same as finding a constitutional right to marry but it is real close overturning referenda and statutes that have/had overwhelming support. If he is willing to go that far he might as well have gone/go all in. Don’t think he is there yet. Perhaps by time it gets to them he will be. Who knows? He truly is a wild card.

  6. HarvardLaw92 says:

    @Laurence Bachmann:

    Section 2 has nothing to do with state prerogatives. It has to do with Congress exercising a federal prerogative, and doing so in a way that establishes a different standard for recognition based on the type of marriage involved. That’s a pretty clear equal protection violation IMLO.

    From there, once Section 2 falls, you take it to the states and file suit seeking to force them to recognize out of state marriages in accordance with full faith & credit, so that you can bring the argument to bear on asserted public policy exceptions. Nobody expects this to be a short fight, but the next step is getting rid of Section 2.

  7. Laurence Bachmann says:

    @HarvardLaw92: My mistake. I thought it allowed a state to not acknowledge a SSM marriage from another. Definitely need to go back to the bill. Thanks.

  8. HarvardLaw92 says:

    @Laurence Bachmann:

    It does, but Congress exercised a constitutional prerogative under Article IV in issuing a directive that states didn’t have to accept SOME marriages. Its actions in that regard are therefore evaluated under the terms of the Constitution – specifically the implied equal protection grant of the 5th Amendment. Congress can’t exercise a constitutional prerogative in a manner that violates another section of the Constitution.

    It created a situation where, by Congressional decree, some marriages are less than others. If we accept the reasoning in Windsor, that the federal government can’t constitutionally segregate recognition of marriages, then we must also accept that the same reasoning means that it can’t issue a decree allowing states to do the same.

    Once that falls, the states will no longer be able to assert Section 2 as a defense against lawsuits alleging equal protection violations with regard to SSM bans. They’ll be stuck asserting public policy exceptions (i.e. that recognizing SSMs performed in other states is against the public policy of their state), and that opens the door to those public policy exceptions being evaluated in federal courts under the equal protection grant of the 14th Amendment (which is explicit). The states will be stuck defending the validity of their own bans, and Windsor will be hanging heavy over the heads of those federal judges evaluating them. It’s really the pebble that will bring down the dam, IMO.

  9. RGardner says:

    Back around 2003 I remember the Christianist Delegate from the Ashburn area (maybe JJ remembers his name, he lived there then) put forth an amendment on the bill to remove the VA prohibition on corporations from offering non-married health care benefits to significant others. VA was one of two states that explicitly prohibited non-married couples from receiving any benefits. (Pregnant girlfriend, no healthcare under the male’s health care plan). Large corporations (like IBM). reported difficulties getting personnel to transfer to VA offices. This Delegate’s (ignorant) amendment simply added the words, “except for those ineligible to donate blood under Red Cross standards.”

    I sent him an email asking why he was so anti-military. At the time I was ineligible to donate blood having lived for over 6 months in Europe with the US military (possible exposure to Creutzfeldt–Jakob Disease = Mad Cow), and military were probably the largest group likely to donate that were prohibited.from doing so. His response back was that the former Chief Prosecutor of the Pentagon didn’t have a problem with it (um, the Pentagon is a building, has no Chief Prosecutor, nor does DoD have a Chief Prosecutor, that is a Service function – so he gave me a lie). He thought he was making a strike against the gays, but the actual targets were those that could not give blood:
    – Military who had served in Europe
    – Pregnant women
    – Elderly (particularly anyone on blood thinners)
    – Anyone with high blood pressure
    – Sick people
    and finally gay men (his intended target)

    A few days later the American Red Cross went ballistic on this, and it was removed.

    My overall point here (other than tellin’ a story) is that times are changing, rapidly. Adapt and adjust.

  10. Laurence Bachmann says:

    @HarvardLaw92: Okay, I better understand your point of why it is potentially monumental but still unconvinced Kennedy will be so accommodating. Also, I don’t think it is the only way to strike Section 2 down, and there are alternatives Kennedy would find more appealing. Based on my admittedly novice observations he seems most willing to grant gays and lesbians traditional Constitutional protections but unconvinced that marriage is necessarily one. Clearly he isn’t going to tolerate federal interference in marriage but seems willing to give latitude to states. He voiced concern that the Court should overturn the results of a democratic referendum (Prop 8). And he didn’t. Roberts was needed to do so. Kennedy apparently would have let it stand.

    To me that suggests he doesn’t perceive a Constitutional right to marry. Rather, it is a privilege granted and (importantly) licensed and regulated by states. Ipso facto, state laws do and may vary. They may continue to do so and the state by state battle continues. I do think he will strike down Section 2 of DOMA but on 10th amendment grounds–it was an inappropriate intrusion by
    the Federal Government of States’ Rights. That way no 14th Amendment consideration arises–section 2 shouldn’t have been written at all.

    Article IVs full faith and credit clause is an interesting issue but it only advances SSM in so far as
    TX or MS can be forced to recognize NY marriages but don’t have to allow their own. I could be completely wrong about all of the above but at one point during oral arguments in Windsor he asked lawyers if they were hoping the Court would “go over the cliff” and find a right to SSM. His characterization suggests he sees doing so as something of a social revolution–which, frankly it
    would be.

    As a gay man I am extremely conscious of the debt owed Kennedy on gay rights issues–but his
    Prop 8 inaction and awful rulings like gutting the Voting Rights Act and campaign finance remind me he is, at heart a conservative. I’m not sure he is willing to light the fuse…..hope I’m wrong. Nice chatting.

  11. Tyrell says:

    I think some of the states that have these amendments that were approved in legal elections by a majority of the people are going to start pushing back on the intrusive power grabbing tactics of the federal government. A judge should not be allowed to overturn the will of the people, especially judges who are not elected. It does not matter to me about this marriage issue one way or the other. Let the people decide.

  12. humanoid.panda says:

    @Tyrell: So, how do you feel about the court overthrowing parts of the Civil Rights Act? Did you denounce the judges who wanted to throw out Obamacare? How do you feel about Loving vs. Virginia, another case where the courts overturned the will of the people?

  13. James in Silverdale, WA says:

    @Tyrell: “The people” are not qualified to take away rights from those with whom they disagree. The issue is lost. Get over it.

    Here’s why: when you insult gay people in 2013, you insult their friends, family, co-workers, teammates and fellow worshipers, pretty much immediately, thanks to social media. And this extended circle has said “enough.” They have said it to your face: we are not going to take the badmouthing any longer.

    It’s over.

  14. JohnMcC says:

    @Tyrell: So could you be somewhat more specific about which of your rights and privileges that you are accustomed to exercising you are willing to let the people of your state vote to deprive you of?

  15. Laurence Bachmann says:

    @Tyrell: You know, Tyrell I am a gay man, now pushing 60 who never in his wildest dreams believed that people who were homophobic, and also people of good faith who are “evolving” on this issue would EVER be the one’s on the defensive. I assume you are one of those of good faith trying to work through it and I am fine with that. Part of me wants a Loving v Virginia decision and another part understands the value of working through the process and changing minds rather than imposing a judicial ruling.

    So I am happy to continue working to overturn those bans. Frankly I think if referendums were held tomorrow more than half would easily be discarded but we will see. But if we are going to have an HONEST discussion let’s start with the fact that judicial rulings are as much a part of the political process as any other branch of government. We have judges PRECISELY to decide whether a law is constitutional or not. Demonizing them when it doesn’t go your way is cheap and unworthy.

    Hell, if I can live with DOMA and DADT being enacted you damn well can live with them being rescinded by Congress and the Exective or overruled by the Supreme Court. That’s our process. If you don’t like too bad.

    The last think I would like to address is your point about “the will of the people.” being overturned (I presume you mean by judges, not legislatures). I would like to point out that Jim Crow laws were also the will of the people and nothing but a viscous, legal degradation of African Americans. I am not suggesting the issue of SSM is comparable, only that the “will of the people” can be bigoted, prejudiced and unAmerican.

    As this “conversation” continues, I hope you will ponder that truth as well.

  16. Laurence Bachmann says:

    @James in Silverdale, WA: You hit the nail on the head James, what started as a legal debate is now fueled entirely by family and friends sick and tired of having people demonize their loved ones.

    There is a great article in Time this week about how SSM won in Minnesota because far right Republicans overreached trying to pass a constitutional ban. When gay rights groups organized it just kept snowballing into a grass roots movement– only was the ban easily turned away but the republicans associated with it were turned out and the new democratic legislature approved SSM.

    It warms the heart!

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