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Tim Wheeler and Bob Alcock: No defense

CHARLESTON, W.Va. -- Attorney General Patrick Morrisey faces a quandary: How will he defend the state's ban on same­-sex marriage when all his arguments have been rejected by six federal judges?

Three gay and lesbian couples filed a lawsuit last October in federal court seeking to overturn West Virginia's ban on same­-sex marriage. The three couples sued Kanawha County Clerk Vera McCormick and Cabell County Clerk Karen Cole for refusing to issue them marriage licenses. Morrisey was granted permission to intervene in the case on behalf of the state.

In preliminary filings Morrisey told U.S. District Court Judge Robert C. Chambers that the state should be allowed to define marriage. For guidance on that question, all Judge Chambers has to do is look at recent opinions from his colleagues in Utah, Oklahoma, Kentucky, Ohio, Virginia and Texas.

Yes, the state can define marriage, say the judges, but U.S. Constitution does not allow the state to define marriage in a way that discriminates against a class of people without a compelling reason.

Is tradition a compelling reason? The assumption all along has been that marriage is between a man and a woman. No, say the judges, tradition does not provide a license to discriminate. The judges cite numerous U.S. Supreme Court opinions, including the 1967 Loving v. Virginia decision which declared unconstitutional state bans on interracial marriages.

How about the argument that children need a man and a woman as parents for best growth and development? The judges looked at that argument and found there was no credible evidence to support the claim.

Well, surely, the state has an interest in promoting responsible procreation. Yes, say the judges, but the ability or willingness to procreate has never been a condition that must be met before a couple is granted a marriage license.

If gay and lesbian couples are allowed to marry, the institution of marriage falls apart. No, say the judges, there is no evidence to believe married heterosexual couples will love each other any less or that their marriage will somehow be diminished if same­-sex couples are allowed to marry.

If gay and lesbian couples cannot marry, how have they been harmed? They shouldn't even be in court. Yes, say the judges, the couples bringing these lawsuits have been harmed. They are denied hundreds of benefits that the states bestow on married couples, from adoption rights to tax benefits. They are demeaned every day for no compelling reason, other than they are of the same gender.

It is safe to assume, Morrisey and his staff have read all the papers filed in the recent cases, they have pored over the transcripts of the hearings, and they have analyzed the opinions. And the natural question that follows is: What is there left to argue that hasn't already been shot down?

The answer is nothing. Morrisey has nothing new to offer Judge Chambers.

But Morrisey has another option. He can withdraw from the case. Morrisey can inform Judge Chambers that West Virginia's ban on same­-sex marriage is not defensible in a court of law.

We urge Attorney General Morrisey to do what attorneys' general in Pennsylvania, Virginia, Nevada, Oregon and Kentucky have done, opt not to defend discrimination.

Wheeler and Alcock live in Lost River. Rhonda McIntosh and Robin White of Mathias, Dusty Foster and Scott Jarrell of Charleston, Donald Hitchcock and Paul Yandura of Wardensville and Betsy and Pat Pate-Walker of Lewisburg also contributed to this commentary.


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