CHARLESTON, W.Va. -- A federal judge ruled this week that most of the lawsuit against West Virginia's ban on same-sex marriage could continue but said the lawsuit's claim that the state should recognize gay marriages from other states can't proceed without additional plaintiffs.
None of the couples named as plaintiffs in the lawsuit has an out-of-state marriage license, so they don't have legal standing to challenge the fact that West Virginia won't recognize them, U.S. District Judge Robert C. Chambers said in his order Wednesday.
Chambers gave the plaintiffs -- three same-sex couples from West Virginia -- until Feb. 12 to amend their complaint.
"The court finds that even if a certain activity is futile, a plaintiff must nonetheless demonstrate willingness to engage in the activity were it not for a barrier in place that makes the activity futile," the judge wrote.
West Virginia law bans same-sex marriages and does not recognize same-sex marriages performed in other states.
On Oct. 1, the three couples sued Kanawha County Clerk Vera McCormick and Cabell County Clerk Karen Cole. The couples claim that, by complying with state law and refusing to issue them marriage licenses, the clerks are unfairly discriminating against same-sex couples, in violation of the due-process and equal-protection clauses of the 14th Amendment of the U.S. Constitution.
The lawsuit says that, by denying the couples marriage licenses, the clerks are denying them benefits such as health insurance, hospital visitation rights, family leave and tax benefits.
Lambda Legal, a national gay-rights organization, filed the lawsuit on behalf of the three couples: Casie McGee and Sarah Adkins, and Justin Murdock and William Glavaris, all of Huntington; and Nancy Michael and Jane Fenton, of St. Albans.
West Virginia Attorney General Patrick Morrisey intervened in the lawsuit to defend state law. Attorneys with his office had asked Chambers to throw out the lawsuit, saying state law doesn't cause them any immediate harm because the couples aren't married, so the fact that West Virginia doesn't recognize same-sex marriages from other states doesn't affect them.