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Judge removes McDonnell from gay marriage suit

By Larry O'Dell
The Associated Press

RICHMOND -- A federal judge on Monday removed Gov. Bob McDonnell from a lawsuit challenging the state's same-sex marriage ban but refused to dismiss a Staunton court clerk as a defendant.

U.S. District Judge Michael F. Urbanski in Harrisonburg ruled the governor cannot be sued because he has no specific responsibility for enforcing the state's marriage laws. Staunton Circuit Court Clerk Thomas Roberts does have such a responsibility, the judge said, because issuing marriage licenses is one of his duties.

The ruling allows the lawsuit to continue with Roberts and Janet Rainey, the state registrar of vital records, as defendants. The state did not contest Rainey's involvement in the lawsuit.

"We're grateful that we have the chance to move ahead to challenge this discriminatory ban on behalf of loving and committed Virginia couples," said Claire Guthrie Gastanaga, executive director of the ACLU of Virginia, which is representing two Shenandoah Valley couples who filed the lawsuit Aug. 1.

Joanne Harris and Jessica Duff of Staunton and Christy Berghoff and Victoria Kidd of Winchester claim in the lawsuit 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.

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

Urbanski said in Monday's ruling that the doctrine of sovereign immunity, which generally prohibits a citizen from suing the state, extends to the governor when he is acting in his official capacity. He said courts have carved out an exception when there is a "special relation" between a state official and a challenged statute, but no such relation exists in this case.

"Virginia's marriage laws do not expressly refer to the governor, there is no allegation that the governor has taken steps to enforce the same-sex marriage ban, and there is no dispute that the suit may continue against Rainey, the state registrar of vital records," the judge wrote.

Roberts claimed that he, too, should be exempt from being sued by Harris and Duff because they never applied for a marriage license. The couple did inquire at Roberts' office about getting a license. They were told same-sex couples cannot get married in Virginia, Urbanski noted.

"It is abundantly clear that plaintiffs' alleged harm is actual, concrete, and particularized," he wrote. "Plaintiffs need not submit a marriage license application in order to challenge a law that flatly precludes their ability to obtain a marriage license."

The court also rejected Roberts' argument that he should be exempt from being sued because he has no control over the state law. Urbanski wrote that being sued in one's official capacity "is simply a burden which government officials are occasionally required to bear in the course of holding public office."

The lawsuit in Harrisonburg is one of two seeking to overturn Virginia's ban. A Norfolk couple filed a lawsuit in federal court in July.

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