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Winchester, Staunton couples challenge Virginia's gay marriage ban

By Larry O'Dell -- Associated Press

RICHMOND -- Two couples from the Shenandoah Valley filed a federal class-action lawsuit Thursday challenging Virginia's same-sex marriage ban.

The ACLU of Virginia and Lambda Legal are representing the plaintiffs in the lawsuit filed in U.S. District Court in Harrisonburg. The complaint alleges that Virginia's constitutional amendment prohibiting gay marriage and denying recognition of such unions sanctioned by other states violates the equal protection and due process clauses of the Constitution.

Plaintiffs Joanne Harris and Jessica Duff of Staunton and Christy Berghoff and Victoria Kidd of Winchester say in the lawsuit that they are seeking to represent all same-sex couples in Virginia who want to get married or have already married in other jurisdictions. About three dozen states do not allow same-sex marriage, and Virginia is one of 29 states that have put the ban in their constitutions.

Earlier this summer, the U.S. Supreme Court struck down a provision of the federal Defense of Marriage Act that denied federal benefits to married gay couples. The justices also left intact a lower court ruling overturning California's gay marriage ban. That decision was based on a legal technicality and did not address the law's constitutionality.

Berghoff, an Air Force veteran who works for the U.S. Department of Justice, and Kidd were married in the District of Columbia in 2011 and have an 8-month-old daughter.

"When I go to work in D.C., I'm married with a child, and when I come home to Virginia, I'm considered single," Berghoff said at a Richmond news conference.

Some same-sex couples have already left Virginia or are planning to move to one of the states that recognize gay marriage, but Berghoff and Kidd said they don't want to do that. Kidd said she is a stay-at-home mom and Rotarian who is active in the community.

"This is where we want to call home, and we are the kind of neighbors folks want to have," she said.

Kidd said they also are seeking change for the benefit of their daughter.

"I don't want her to grow up with the idea that somehow her parents are less than anyone else," Kidd said.

Virginia voters approved the same-sex marriage ban 57 percent to 43 percent in 2006.

"Nearly 40 million Americans, including Virginians, have voted to protect the definition of marriage as one man and one woman, and those votes shouldn't be discounted by the courts," said Chris Freund, vice president of the conservative Family Foundation of Virginia.

Claire Guthrie Gastanaga, executive director of the ACLU of Virginia, said "things have changed dramatically" in the past seven years. A Quinnipiac University poll released two weeks ago found that 50 percent of registered Virginia voters support same-sex marriage, while 43 percent are opposed. The poll's results had a margin of sampling error that is plus-or-minus 3.1 percentage points.

"If public opinion is indeed changing as same-sex marriage advocates allege, they should be able to win at the ballot box, change the legislature and use the same process we used to pass the amendment in the first place," Freund said.

Gastanaga said that is unrealistic because of legislative districts drawn by Republicans to preserve their control of the General Assembly.

"If we thought we had a viable political and legislative alternative to going to court, we would have taken it," she said.

Brian Gottstein, a spokesman for Attorney General Ken Cuccinelli, said the office does not comment on pending litigation. However, after the Supreme Court rulings in June, he said the office "will continue to defend challenges to the constitution and the laws of Virginia."

The ACLU has said its goal is to legalize gay marriage in at least 20 states by the end of 2016.

The lawsuit filed Thursday is the second one seeking to overturn Virginia's ban. A Norfolk couple filed a lawsuit in federal court last month.

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