Va. gay marriage ban challenged

Posted: August 2, 2013

The Winchester Star

Victoria Kidd (left), and Christy Berghoff, who live in the Winchester area, have alleged that Virginia’s constitutional amendment prohibiting gay marriage violates equal protection under the Constitution. (Photo by Jeff Taylor/The Winchester Star)

HARRISONBURG — A married lesbian couple from the Winchester area is suing Gov. Bob McDonnell to recognize the validity of their union and to allow gay marriage.

Christy Berghoff and Victoria Kidd, along with Staunton couple Jessica Duff and Joanne Harris, filed a class action complaint Thursday in U.S. District Court in Harrisonburg.

The suit asks the court to deem Virginia’s refusal to allow or recognize gay marriage as unconstitutional.

It says Virginia’s ban on gay marriage is discrimination, and harmful not only to gay couples, but also their children. Both couples in the complaint have children.

Berghoff and Kidd, both 34, sat down with The Winchester Star a few weeks ago to discuss their life and how they feel that Virginia treats them as “second-class citizens.”

They are parents to a 9-month-old daughter, Lydia Berghoff-Kidd. A major reason why Berghoff carried the pregnancy was because her federal benefits — health insurance, in particular — didn’t extend to Kidd at the time.

Kidd, who is Lydia’s primary caregiver since her wife’s job in Washington, D.C., takes her away from their Winchester-area home for 13 hours a day, had to petition in court for her right to make medical decisions for the infant.

Kidd and Berghoff were married in Washington, D.C., two years ago.

Thursday’s complaint, filed by attorneys with the American Civil Liberties Union and the Lambda Legal Defense and Education Fund, also names Staunton Circuit Court Clerk Thomas E. Roberts and Virginia Registrar of Vital Records Janet M. Rainey as defendants.

It asks that the court declare unconstitutional Virginia’s ban on same-sex marriage and its refusal to recognize the marriages of couples who were validly married in other jurisdictions.

On Monday, Duff and Harris went to Staunton Circuit Court seeking a marriage license, but their application was refused by Roberts, according to the complaint.

The complaint asks that the defendants in the case be required to issue marriage licenses to same-sex couples.

“Through the Commonwealth’s constitutional and statutory marriage bans and through Defendants’ enforcement of them, the Commonwealth and Defendants send a purposeful message that they view lesbians, gay men, and their children as second-class citizens who are undeserving of the legal sanction, respect, protections, and support that heterosexuals and their families are able to enjoy through marriage,” the complaint states.

That is discrimination, according to the complaint.

Harris and Duff aren’t married but want to be for the same reasons as heterosexuals marry, it says: “to publicly declare their love and commitment before their family, friends, and community, and to give one another and their son J.H.-D. the security and protections that only marriage provides.”

Harris, 37, and Duff, 33, have been a couple for 11 years and have a 4-year-old son, identified in the suit by his initials.

“Joanne and Jessi worry about the hurtful messages of stigma that their inability to marry sends to J.H.-D.,” the suit states. “He is proud of their family, but even at the age of four is very aware that his parents cannot marry.”

Duff is barred from adopting the little boy and it’s not clear she could authorize medical decisions for him in an emergency, according to the complaint.

Harris, an epileptic, has a fraught relationship with her parents, and is concerned they would try to override her end-of-life wishes, which Duff respects, according to the complaint.

Meanwhile, Kidd and Berghoff are “treated as legal strangers in the state they call home,” according to the suit. They have lived in their Winchester-area home since 2007.

“Getting legally married was important to Victoria and Christy because of the legitimacy it afforded to their relationship, and because a government-sanctioned marriage ceremony provided a way for them to officially pledge their lives to one another,” the complaint says. “...the Commonwealth’s disrespect of their marriage invites others to see them as ‘less than.’”

This was evident in their “hostile” treatment by one of the nurses at Winchester Medical Center following Lydia’s birth, the suit alleges.

McDonnell is named in the suit because of his role in ensuring the state’s laws, including the ban on gay marriage, are executed.

As state registrar of vital records, Rainey oversees marriage license applications.

“...[T]his includes furnishing forms that prohibit same-sex couples from marrying by requiring a ‘Bride’ and a ‘Groom,’” the complaint states. “Ms. Rainey also enforces Virginia law with respect to birth certificates, which disrespects same-sex couples’ valid marriages from other jurisdictions by requiring that, for children resulting from assisted conception, the birth certificate contain the name of the mother and her ‘husband.’”

Virginia passed its first law banning homosexual marriage in 1975, according to the lawsuit. Twenty-two years later, it broadened the law, voiding gay marriages from out of state, plus any rights those marriages brought, it says.

In 2004, the state banned gays from entering into any civil union or partnership that would bring with it the privileges and obligations a marriage would, according to the complaint.

Voters in 2006 approved a constitutional amendment stating marriage could only be between one man and one woman, and that Virginia wouldn’t recognize “a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage.”

Supporters of same-sex marriage were given a boost this summer with two decisions from the U.S. Supreme Court. One struck down a portion of the Defense of Marriage Act, which defines marriage as only between a man and a woman.

In a second decision that cleared the way for gay marriage in California, the court left in place a trial court’s declaration that the state’s prohibition on gay marriage is unconstitutional.

This is the third case the ACLU has filed since the Supreme Court’s rulings, said Amanda Goad, an ACLU attorney representing the plaintiffs. The others are in North Carolina and Pennsylvania.

“We’re pursuing the freedom to marry through various strategies in various states,” she said Thursday afternoon. “One of the interim goals is to have at least 20 states [that allow gay marriage] by 2016.”

Currently, 13 states and the nation’s capital allow homosexual marriage, Goad said.

“We filed the suit as a class action, meaning that we’re seeking to represent [not just] the two couples named there, but all Virginia couples affected by the marriage ban,” she said.

Goad said that because McDonnell is named in his official capacity as governor, the next governor who takes office in January would then become the defendant.

McDonnell’s press secretary, Taylor Thornley Keeney, provided a statement in response to the suit: “The voters of Virginia passed a constitutional amendment in 2006 defining marriage in the Commonwealth as being only a union of one man and one woman. It is the law in this state based on the popular will of the voters as expressed at the ballot box.”

Roberts hadn’t yet seen the lawsuit and had no response.

— Contact Sally Voth at svoth@winchesterstar.com