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Kanawha clerk seeks time on gay marriage lawsuits

CHARLESTON, W.Va. -- Kanawha County Clerk Vera McCormick asked a federal judge Tuesday to give her more time to file a response to a lawsuit filed against her that challenges the state's ban on gay marriage.

McCormick and Cabell County Clerk Karen Cole are being sued in federal court by three couples who say West Virginia's marriage ban violates the 14th Amendment of the U.S. Constitution and unfairly discriminates against same-sex couples and their children.

Late Tuesday afternoon, U.S. District Judge Robert C. Chambers directed attorneys for the three same-sex couples to respond to McCormick's motion for more time by Thursday.

Attorneys with Lambda Legal, a national civil rights organization, filed the lawsuit Oct. 1. McCormick's response was due Wednesday. Cole's response is due Oct. 29.

In a motion asking for more time, McCormick wrote that she first reached out to attorneys for the plaintiffs, who would not agree to an extension.

Because a constitutional question is being raised, McCormick wants to know if Attorney General Patrick Morrisey will step in.

Morrisey's office has not responded but has 60 days from the filing of the lawsuit to intervene, McCormick's filing Tuesday states.

"The result of this litigation will have far ranging effects on each and every citizen in the state of West Virginia and each and every Clerk for the County Commission of each county in West Virginia," McCormick's attorneys, Charles Bailey and Michael Taylor, wrote.

McCormick "has no discretion with respect to the acceptance of marriage application[s]," her motion states.

One of the couples in the lawsuit is from St. Albans. They previously requested a marriage license in Kanawha County, because it was necessary for them to be turned down in order to have grounds to file the lawsuit.

Cole previously told the Gazette that both Huntington couples listed in the suit had attempted to file for marriage licenses before -- but that if she had issued them, she would have been committing a misdemeanor under state law.

"My role is to defend what Vera did, and she followed the law," Bailey said Tuesday. "It's not Vera McCormick's role to defend the constitutionality; her role is to enforce the statute."

Kanawha County Commissioner Kent Carper said Tuesday morning he expected Morrisey to intervene.

"Where's the state? It's their law," Carper said, adding McCormick is using "local tax dollars to defend herself when she's just upholding a state law."

Beth Ryan, spokeswoman for Morrisey, said Tuesday that the attorney general is evaluating his options.

In June, in a 5-4 decision, U.S. Supreme Court justices struck down a key piece of the federal Defense of Marriage Act, ruling that a provision that denied benefits to legally married gay couples is unconstitutional.

In another 5-4 decision, the court cleared the way for gay marriage to resume in California by ruling that supporters of Proposition 8, a gay marriage ban, didn't have legal standing to challenge a lower court that overturned the law.

West Virginia doesn't recognize same-sex marriage licenses from other states. Also, the state's Human Rights Act doesn't include sexual orientation as one of the protected categories from housing and employment discrimination. State lawmakers have rejected several recent attempts to include gays and lesbians in the state's discrimination laws.

Reach Kate White at kate.white@wvgazette.com or 304-348-1723.


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