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Judge certifies same-sex marriage lawsuit for class action

By Joe Beck

A ruling by U.S. District Court Judge Michael F. Urbanski in Harrisonburg has raised the stakes in a federal lawsuit seeking to overturn Virginia's same-sex marriage.

Urbanski certified the suit for class action status, a decision that means a victory for the plaintiffs in the case would also extend to the state's other same-sex couples.

The plaintiffs, Christy Berghoff and Victoria Kidd of Winchester, and Joanne Harris and Jessica Duff of Staunton, filed the suit in August. They stated at the time they were seeking to represent all same-sex couples in Virginia who hope to marry or have been legally married outside the state.

Berghoff and Kidd were married in the District of Columbia in 2011 and are parents of a daughter who is about a year old.

Rebecca Kim Glenberg, an attorney with the Virginia Civil Liberties Union, said in an interview Thursday that she was "very pleased" with Urbanski's ruling. Glenberg is one of several attorneys representing the plaintiffs.

"The motivation for this was to ensure that a favorable ruling will apply to everyone in the state who is affected by the discriminatory laws," Glenberg said. "And that was something important to us and our clients."

The plaintiffs in a similar lawsuit in federal court in Norfolk did not seek class action status in their challenge to the same-sex marriage ban, Glenberg said.

In his 21-page opinion, Urbanski wrote that the lawsuit met several standards needed for class action certification.

For example, plaintiffs seeking class action status must present evidence that their suit encompasses the interests of a large number of people sharing the same class with them.

Urbanski cited the 2010 U.S. census estimate of 15,000 same-sex households in Virginia as sufficient proof of a large number of people falling under the same class as the plaintiffs.

"While defendants question the reliability of the census data cited by the plaintiffs, there can be little doubt that the numerousity requirement is satisfied," Urbanski wrote.

Urbanski also concluded that the defendants in the case -- state Registrar of Vital Records Janet M. Rainey and Thomas E. Roberts, Clerk of Staunton Circuit Court -- had failed to show that it would be too hard to determine which couples qualify for same-sex status when issuing a marriage license.

"Contrary to this argument, if plaintiffs are successful here, defendants shall have no difficulty identifying members of the class," Urbanski said. "Two people -- a couple -- of same sex will apply for a marriage license. Or, two people of the same sex married in another jurisdiction will seek recognition of their marriage. If plaintiffs prevail, defendants shall not be permitted to deny such an application or such recognition solely on the basis that the couple is of the same sex. Thus, determining to whom the judgment applies and how to implement such a judgment would be simple."

Contact staff writer Joe Beck at 540-465-5137 ext. 142, or jbeck@nvdaily.com

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