Case 3:13-cv-24068 Document 8 Filed 10/01/13 Page 1 of 30 PageID #: 16

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA Huntington Division

CASIE JO MCGEE and SARAH ELIZABETH ADKINS; JUSTIN MURDOCK and WILLIAM GLAVARIS; and NANCY ELIZABETH MICHAEL and JANE LOUISE FENTON, individually and as next friends of A.S.M., a minor child;

Plaint[f{s,
v.
KAREN S. COLE, in her official capacity as CABELL COUNTY CLERK; and VERA J. MCCORMICK, in her official capacity as KANAWHA COlJNTY CLERK;

Civil

Action

No.

3:13-cv-24068
----

Defendants.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiffs CASTE JO MCGEE and SARAH ELIZABETH ADKINS; JUSTIN

MURDOCK and WILLIAM GLAVARIS; and, NANCY ELIZABETH MICHAEL and JANE

LOUISE FENTON, individually and as next friends of A.S.M., a minor child, all by and through

their attorneys, file this Complaint against Defendants KAREN S. COLE, in her official capacity

as CABELL COUNTY CLERK, and VERA .T. MCCORMICK, in her official capacity as

KANAWHA COlJNTY CLERK, and allege as follows:

INTRODUCTION

1. Plaintiffs are six lesbian and gay West Virginians who comprise three loving and

committed same-sex couples ("adult Plaintiffs" or "Plaintiff couples"), and a child of one of the

couples ("child Plaintiff') (collectively, "all Plaintiffs"). All Plaintiffs bring this action pursuant

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to 42 U.S.C. § 1983 to challenge Defendants' discriminatory denial to the Plaintiff couples ofthe freedom to marry in the State of West Virginia ("the State"), and Defendants' exclusion of the child Plaintiff from belonging to a family headed by married parents, solely because the members of each of the Plaintiff couples are of the same sex. All Plaintiffs seek declaratory and injunctive relief for the violation of their guarantees of liberty and equal protection under the Fourteenth Amendment to the United States Constitution as a result of West Virginia statutes that expressly deny same-sex couples, including Plaintiff couples, the fre.edom to marry and also deny respect to marriages of same-sex couples validly entered in other states, see W.Va. Code §§ 48-2-104, 48-2-401, and 48-2-603 (collectively hereinafter the "marriage ban" or "the ban").
2. The adult Plaintiffs seek the freedom to marry the one unique and irreplaceable person each loves, and thereby to assume the responsibilities and obtain the myriad protections, obligations and benefits conferred upon married couples and upon their children under state and federal law. Plaintiff A.S.M. seeks the protections, security, support, and benefits conferred upon the children of married parents, and to end the stigma, shame, and humiliation imposed upon children of lesbian and gay parents by the law's refusal to permit them to belong to families with married parents and designation of their families as inferior to others and unworthy of marnage.
3. The right to marry the person of one's choice, and to direct the course of one's life in this intimate realm without undue government interference is one of the fundamental liberty interests protected for all by the Due Process Clause of the United States Constitution. The State's exclusion of plaintiff couples and other same-sex couples from marriage violates their fundamental right to marry. The State also interferes with the constitutionally protected liberty and privacy interests in familial association and integrity of A.S.M. and other similarly-
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situated children of same-sex couples without any compelling, important or even legitimate justification.
4. The State also has deprived all Plaintiffs of their guarantee of equality under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution by denying Plaintiff couples and other lesbian and gay West Virginians the right to marry the person of their choice based solely on their sexual orientation and sex. Likewise, the State denies the child Plaintiff and other children of same-sex parents equal access to the dignity, legitimacy, protections, benefits, support, and security conferred on children of married parents under state and federal law.
5. Marriage plays a umque role in society as the universally recognized and celebrated hallmark of a couple's commitment to build family life together. It confers upon couples a dignity and status of immense import. Through the marriage ban and through Defendants' enforcement of the ban, the State 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 different-sex couples and their children receive automatically through marriage.
6. The marriage ban inflicts serious and irreparable harms upon the adult Plaintiffs and the child Plaintiff and other san1e-sex couples and their children across the State. The ban excludes them from the security and support available to married couples and their children, and from the myriad legal protections available to spouses and their children under state and federal law.
7. The marriage ban penalizes the adult Plaintiffs' self-determination in the most intimate sphere of their lives. The Supreme Court has stated that marriage is the most important
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relation in life, as well as an expression of emotional support and public commitment and a farreaching legal acknowledgement of the intimate relationship between two people. The marriage ban deprives the adult Plaintiffs and other same-sex couples of dignity, and humiliates plaintiff A.S.M. and other children of same-sex couples, by branding their families as inferior and unworthy of the legitimacy, recognition, and respect accorded to other frunilies.
8. Because the freedom to marry is one of the vital personal rights essential to the orderly pursuit of happiness by free men and women, Plaintiffs seek equal access to the ±i-eedom to marry for same-sex couples as the only means to secure their rights to due process and equal protection of the law, and to eliminate the myriad serious harms inflicted on all Plaintiffs by the marriage ban and Defendants' enforcement of it.
JURISDICTION AND VENUE 9. All Plaintiffs bring this action under 42 U.S.C §§ 1983 and 1988 to redress the deprivation under color of state law of rights secured by the United States Constitution. 10. This Court has original jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the Constitution and laws of the United States. 11. Venue is proper in this Court under 28 U.S.C § 139l(b) because all Defendants reside within the Southern District and State of West Virginia, and the events that gave rise to all Plaintiffs' claims took place within the Southern District of West Virginia. Further, a majority of the parties, namely, Plaintiffs Casie Jo McGee ("Casie"), Sarah Elizabeth Adkins ("Sarah"), Justin Murdock ("Justin"), and William Glavaris ("Will), and Defendant Karen S. Cole reside within the Huntington Division of the Southern District of West Virginia, and a substantial part of the events that gave rise to all Plaintiffs' claims took place within the Huntington Division.
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12. This Court has the authority to enter a declaratory judgment and to provide preliminary and permanent injunctive relief pursuant to Rules 57 and 65 of the Federal Rules of Civil Procedure, and 28 U.S.C. §§ 2201 and 2202.
13. This Court has personal jurisdiction over Defendants because they are domiciled in the State.
PARTIES A. Plaintiffs 14. Plaintiffs CASIE, 30, and SARAH, 32, are a lesbian couple living in Huntington, Cabell County, within the Huntington Division of the Southern District of West Virginia. Casie and Sarah have been in a loving committed relationship for more than 3 years and wish to marry. Both life-long West-Virginians, Casie was raised in Ritchie County, West Virginia and is currently an Assistant Professor of Mathematics at Mountwest Community and Technical College in Huntington. She obtained her bachelor's degree in English and Mathematics and her master's degrees in Mathematics from Marshall University. Sarah has lived all her life in Cabell and Wayne Counties, West Virginia, and is currently an anthropology student at Marshall University. The marriage ban frustrates Casie's and Sarah's dreams of being able to marry each other before their friends and families in West Virginia. Additionally, the marriage ban strains the couple's finances and causes them to feel stress and uncertainty about the future. For example, if they were able to marry, Casie, a public employee, would be able to provide Sarah with spousal health insurance coverage on her employer-provided health plan. Because the couple is barred from marrying, Casie cannot add Sarah to her plan. Casie and Sarah cannot afford to buy separate health insurance for Sarah, who has diabetes. In the past, Sarah required treatment at an emergency room for elevated blood sugar. Because Sarah had no health insurance, she and Casie were required to pay for the services out of pocket. As well, Casie and
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Sarah are planning to create a family together through the use of assisted reproductive technology ("ART") and an anonymous sperm donor, and look forward to the day when they will have children. However, Casie's inability to put Sarah on her health insurance affects the couple's plans for bringing children into their family. For couples like Casie and Sarah who are exploring ART, the decision about who will carry the child is a complicated consideration of health issues, employment issues, and finances. Both Casie and Sarah have significant health concerns they must take into account before deciding to get pregnant. However, because Sarah cannot get health insurance as Casie's spouse, the possibility of Sarah carrying their child has been completely talcen off the table. In this way, the denial of marriage to Casie and Sarah directly impacts the couple's private, intimate decision about how to bring children into their lives. Casie and Sarah wish to marry in order to safeguard their relationship to each other and to protect any children they may have.
15. Plaintiffs JUSTIN, 32, and WILL, 31, are a gay couple living in Huntington, Cabell County, within the Huntington Division of the Southern District of West Virginia. Justin and Will have been in a loving committed relationship for over two (2) years and wish to marry. Justin, who grew up in Wayne County, West Virginia, works for his family's business, which supplies physically disabled persons with mobility products and home and vehicle modifications. Will grew up in Logan County, West Virginia, and moved to Huntington to become a student at Marshall University. Will is a network engineer. Justin has two children from a prior marriage he entered into before he had acknowledged to himself or to others that he is a gay man, and he now shares custody of his children with his former spouse. When Justin and Will first met a few months after Justin's divorce becan1e final, they each knew that there was something special about the other. On one of their first dates, Justin took Will to church with him to meet his
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friends and local community. Last year, Justin asked Will to marry him and their friends cheered as Will said yes.
16. Plaintiffs NANCY, 43, and JANE, 45, are a lesbian couple living together with their six year-old son, Plaintiff A.S.M., in St. Albans, Kanawha County, West Virginia. Nancy and Jane have been in a loving committed relationship for 16 years and wish to marry. Nancy and Jane own an information technology consulting business together. Nancy was born in St. Albans, graduated from Marshall University, and has lived in the area for most of her life. Ja~e is a native of Oklahoma but relocated to St. Albans a number of years ago after she and Nancy decided to conceive a child. The couple conceived A.S.M. by assisted reproductive technology with an anonymous donor. Nancy and Jane decided to raise A.S.M. in St. Albans because they wanted to be near friends and family and because it was a community that they knew and loved. Nancy and Jane wish to marry both because they love each other, and for the sake of A.S.M. Although Jane has functioned as A.S.M.'s parent in every way since his birth, she is not A.S.M.'s legal parent, and only Nancy is listed on A.S.M.'s birth certificate. Jane and Nancy worry that in an emergency, Jane will not be recognized as A.S.M.'s parent or even family member, or otherwise as a person authorized to make medical decisions for him. Because Jane and Nancy have been unable to secure their family relationships through marriage, they have paid for alternate, but inadequate and inferior protections such as powers of attorney for health care and paperwork to make Jane a legal guardian to A.S.M. Jane and Nancy must remember to carry important legal documents wherever they go. Jane and Nancy also me concerned about the dignitary harm that A.S.M. may suffer from the couple's inability to marry, especially now that he already tmderstands that West Virginia law relegates them to being, in his words, "just partners," and bars them from being a family with married parents. Nancy and Jane fear that he
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will internalize the message he receives from his government that his family is not as worthy as other families and that he and his parents do not deserve the support for their relationships that other children and their parents receive. Additionally, because West Virginia law bars Nancy and Jane from marrying, Nancy and Jane lack the financial safety net available to manied couples and their children. For example, because Nancy and Jane can neither get nor be recognized as married, Nancy and A.S.M. are not eligible to receive Jane's social security survivor benefits or the retirement benefits that Jane anticipates receiving from her former employer that would be available to Jane's legal spouse and child.
17. Plaintiff A. S.M., 6, sues through his parents and next friends NANCY ELIZABETH MICHAEL and JANE LOUISE FENTON. Nancy and Jane bring this action on behalf of A.S.M. because he is harmed by his parents' inability legally to marry. Because the State does not allow Nancy and Jane to marry, A. S.M. does not have the benefit of the rights, obligations, cost savings, and other benefits that accrue to the benefit of children of married parents under West Virginia law, nor of the rights and status conferred on children of married parents by West Virginia law that help and provide security to other West Virginia children in good times and bad. For example, the guardianship documents that the couple drew up to provide some limited protection to Jane's relationship to A.S.M. terminate upon his reaching adulthood, were costly, and Jane and Nancy would have preferred to put that money toward other child-centered expenses; A.S.M. is harmed by his and his parents lack of access to laws that establish and protect the parentage of children of married couples. A.S.M. also faces less dignity and legitimacy, in his own eyes, the eyes of many others and under law, from his parents not having the freedom to marry one another.
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B. Defendants 18. KAREN S. COLE is sued in her otTicial capacity as the Cabell County Clerk. Ms. Cole's duties include issuing marriage licenses and maintaining records relating to marriage licenses, including records of marriages that take place in states other than West Virginia where one or both parties to the marriage arc West Virginia residents. Ms. Cole must ensure compliance through all of these functions with relevant West Virginia laws, including those that exclude same-sex couples from marriage, and forbid the filing of records relating to marriages of same-sex couples that take place in other states. Ms. Cole is a person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law at all times relevant to this complaint. 19. VERA.. J. MCCORMICK is sued in her ofticial capacity as the Kanawha County Clerk. Ms. McCormick's duties include issuing marriage licenses and maintaining records relating to marriage licenses, including records of marriages that take place in states other than West Virginia where one or both parties to the marriage are West Virginia residents. Ms. McCormick must ensure compliance through all of these functions with relevant West Virginia laws, including those that exclude same-sex couples from marriage, and forbid the filing of records relating to marriages of same-sex couples that take place in other states. Ms. McCormick is a person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law at all times relevant to this complaint. 20. Both of the Defendants, and those subject to their supcrvtswn, direction, and control, intentionally performed, participated in, aided and/or abetted in some manner the acts alleged herein, proximately caused the harm alleged herein, and will continue to injure Plaintiffs irreparably if not enjoined.
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STATEMENT OF FACTS A. Adult Plaintiffs Attempted to Marry But Were Prevented From Doing So. 21. But for the fact that they are of the same sex, each Plaintiff couple is legally qualified to marry under the laws of West Virginia and wishes to marry in the State. Each adult Plaintiff is over the age of 18, and no adult Plaintiff is precluded from marriage as a result of having another spouse or being closely related to his or her life partner. 22. On or about September 18, 2013, Casie McGee and Sarah Adkins appeared in person at the office of Defendant Cole in Huntington, West Virginia, to seek a marriage license because they wish to marry each other. They both presented valid forms of identification, provided the required personal information, and were prepared to pay the required fee and complete a marriage application. When the couple requested a marriage license, an employee of Defendant Cole answered, "We can't do it because you're both female." Casie and Sarah accordingly were denied the opportunity to obtain a marriage license by Defendant Cole's office based solely on West Virginia's prohibition on marriage for same-sex couples and Plaintiffs' respective sex and sexual orientation. 23. On or about September 24, 2013, Justin Murdock and William Glavaris appeared in person at the office of Defendant Cole in Huntington, Cabell County, West Virginia, to seek a marriage license because they wish to marry each other. They both were prepared to present valid forms of identification, provide the required personal information, pay the required fee, and complete a marriage application. When Justin and Will requested a marriage license, an employee of Defendant Cole refused and handed them a copy of a letter prohibiting clerks from issuing marriage licenses to same-sex couples. Justin and Will accordingly were denied the opportunity to obtain a marriage license by Defendant Cole's office based solely on West
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Virginia's prohibition on marriage for same-sex couples and Plaintiffs' respective sex and sexual orientation.
24. On or about September 19, 2013, Nancy Michael and Jane Fenton appeared in person at the office of Defendant McCormick in Charleston, Kanawha County, West Virginia, to seek a maniage license because they wish to marry each other. They both were prepared to present valid forms of identification, provide the required personal information, pay the required fee, and complete a marriage application. When the couple requested a marriage license, an employee of Defendant McCormick asked, "Where's your groom?" Nancy and Jane explained that they wished to many each other. The employee responded, "That's not recognized in the State of West Virginia. There's nothing we can do here." Nancy and Jane accordingly were denied the opportunity to obtain a marriage license by Defendant McCormick's office based solely on West Virginia's prohibition on marriage for same-sex couples and Plaintiffs' respective sex and sexual orientation.
B. West Virginia's Marriage Ban Singles Out Same-Sex Couples and Excludes Them From Marriage.
25. West Virginia has enacted statutes that exclude same-sex couples from marriage. See W.Va. Code§§ 48-2-104 and 48-2-401. These statutes cannot be explained by reference to legitimate public policies that could justify the disadvantages the marriage bans impose on samesex couples who wish to marry. Rather, the history of these enactments and their own text demonstrate that interference with the equal dignity of same-sex couples was more than a mere side effect of the various enactments - it was their essence.
26. Additionally, Defendants are authorized to record marriages entered by differentsex spouses in other jurisdictions when one or both of the spouses is a West Virginia resident, and the State regularly respects these out-of-state marriages as valid and legitimate under West
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Virginia law. The State refuses, however, to recognize marriages entered by same-sex spouses in other jurisdictions. See W.Va. Code § 48-2-603. Thus, not only are the adult Plaintiffs and other same-sex couples denied the freedom to marry in West Virginia, but they are also denied the ability to have a valid marriage from another jurisdiction recorded or recognized in West Virginia.
C. All Plaintiffs Are Injured By The Marriage Ban. 27. Barring same-sex couples from marriage disqualifies them from critically important rights and responsibilities under state law that different-sex couples rely upon to secure their commitment to each other, and to safeguard their families. By way of example only, same-sex couples are denied:
a. The benefit of the presumption that both spouses are parents to a child born during the marriage, including the automatic listing of the mother's spouse as a parent on a child's birth certificate, and the ability of a couple to confer legitimacy on their children by marrying;
b. A streamlined and relatively inexpensive process for bringing children into the family through adoption, whether through joint adoption, or for one spouse to adopt another's child through a step-parent adoption;
c. Fan1ily health insurance coverage including spousal health benefits, and retirement benefits, and surviving spouse annuity benef1ts for public employees;
d. Family leave for a public employee to care for a spouse; e. Death benefits for surviving spouses of firefighters, law enforcement,
military members, and emergency medical services persom1el who die in the
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line of duty, and additional death benefits to a surviving spouse for each dependent child; f. The ability to safeguard family resources under an array of laws that protect spousal finances, including for example, tax laws including different state tax rates for married individuals, the right to file jointly to reduce tax liability, spousal tax exemptions including exemptions for surviving spouses, and tax benefits when transferring or inheriting interests in real and personal property; the benefit of a homestead exemption and personal property exemption for a spouse's medical equipment, clothing, and other personal items; an exemption for a portion of a deceased spouse's personal estate from the deceased's debts or liabilities; the ability to file for workers compensation benefits on behalf of an incapacitated spouse and for the surviving spouse of a workers compensation beneficiary to receive compensation; and the ability for a spouse to receive unemployment compensation for a deceased claimant; g. The ability to make caretaking decisions for one another in times of death and serious illness, including priority to make medical decisions for an incapacitated spouse, the ability to authorize an autopsy, the automatic right to make burial decisions and other decisions concerning disposition and handling of remains of deceased spouses. h. The right to inheritance under the laws of intestacy and the right of a surviving spouse to an elective share; 1. Tuition fee waivers to the spouses and dependent children of employees of public universities;
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J. Benefits for spouses and dependent children of members of the military and veterans;
k. In the event that a couple separates, access to an orderly dissolution process Lor terminating the relationship, assuring an equitable division of the couple's assets and debts, and adjudication of issues relating to custody, visitation, and support with respect to any children the couple may have.
28. The marriage ban not only denies all Plaintiffs and other same-sex couples and their children access to protections, benefits, rights, and responsibilities afforded to married persons and their children under state law, it also denies them eligibility for a host of federal rights and responsibilities that span the entire United States Code and federal regulations. Unmarried couples are denied recognition for virtually all purposes throughout the more than 1,000 statutes and numerous federal regulations relating to marriage, including laws pertaining to Social Security, housing, taxes, criminal sanctions, copyright, and veterans' benefits. Couples validly married in another jurisdiction and living in West Virginia may qualify for some federal benefits and protections, but the language of certain statutes and regulations, such as veterans' spousal benefits and Social Security survivor benefits, references couples recognized as married under the law of their state of residence or domicile. Many of these deprivations drain family economic resources, causing financial harm not only to same-sex couples but to their children as well.
29. In addition to causing the tangible harms listed above, all Plaintiffs are denied the unique social recognition that marriage conveys. Without access to the familiar language and legal label of marriage, the Plaintiff couples are unable instantly or adequately to communicate to others the depth and permanence of their commitment, or to obtain respect for that
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commitment as others do simply by invoking their married status. Likewise, without access to the familiar language and legal label of marriage, Plaintiff A.S.M. is unable instantly or adequately to communicate to others the depth and permanence of his parents' commitment, or to obtain respect for that commitment as others do simply by invoking their parents' married status.
30. Although the Plaintiff couples are all in committed relationships, they and other same-sex couples are denied the stabilizing effects of marriage, which helps keep couples together during times of crisis or conf1ict.
31. The substantive and dignitary inequities imposed on committed same-sex couples include particular harms for same-sex couples' children, who are equally deserving of the stability, permanence, and legitimacy that children of different-sex spouses enjoy. The marriage ban denies children of same-sex couples, including Plaintiff A.S.M., the dignity, legitimacy, rights, benefits, support, security, and obligations conferred on children whose parents are married. Plaintiff A.S.M. and other children of same-sex couples must combat the common assumption, reinforced by West Virginia law, that as members of a family headed by an unmarried couple their bonds are impermanent, insubstantial, and unworthy of equal dignity and legitimacy because the couple has not made a marital commitment and taken on the obligations of marriage. Civil marriage affords official sanctuary to the family unit, offering parents and children a familiar and public means of demonstrating to third parties a legal basis for the parentchild relationship. By denying same-sex couples access to marriage, the State reinforces the view held by some that the family bonds that tie same-sex parents and their children are less consequential, enduring, and meaningful than those of different-sex parents and their children. Plaintiff A.S.M.'s parents, Nancy and Jane, and other same-sex parents raising children in West
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Virginia, cannot invoke their status as married in order to communicate to their own children and others the depth and permanence of the parents' commitment to each other in terms that society, and even young children, readily understand. Consequently, Plaintiff A.S.M. and other children of same-sex couples are left to grow up with the message that their parents and families are inferior to others and that they and their parents do not deserve the same societal recognition and respect.
32. Because same-sex parents and their children thus are deprived of the family security that inheres in a ready and familiar method of communicating to others the significance and permanence of their familial relationships, they must live with the vulnerability and stress int1icted by the ever-present possibility that others may question their familial relationships-in social, educational, and medical settings and in moments of crisis-in a way that spouses and their children can avoid by simple reference to being married.
33. Plaintiff A.S.M. and other children of same-sex couples are less legally secure and economically situated than children whose parents are able to marry, including because of expenses incurred in attempting to create legal protections that approximate some of those that are automatic through marriage, which protections are far inferior to the legal protections afforded through marriage, and because their families are denied the strengthening effect that marriage can provide to their parents' relationships.
34. Children from a young age understand that marriage signifies an enduring family unit, and likewise understand when the State has deemed a class of families as less worthy than other families, undeserving of marriage, and not entitled to the same societal recognition and support as other families. The State has no adequate interest to justify marking the children of
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same-sex couples, including plaintiff A.S.M ., with a badge of inferiority that invites disrespect in school, on the playground, and in every other sphere of their lives.
35. The government is a powerful teacher of discrimination to others. By decreeing that the relationships of same-sex couples must be ignored in West Virginia and enforcing that policy, the State and Defendants inform all persons with whom same-sex couples interact, including those couples' own children, that their relationships are less worthy than others. Bearing the imprimatur of the government, the State's marriage ban, which relegates same-sex couples and their children to a lesser status, encourages others to follow the government's example in discriminating against them.
36. The State's marriage ban, and Defendants' enforcement of it, causes many private entities such as banks, insurers, and even health clubs, to likewise define "family" for purposes of an array of benefits and protections in ways that exclude same-sex couples and their children from important safety nets such as private employer-provided health insurance for family members. The State also encourages disrespect of committed same-sex couples and their children, including Plaintiffs, by others in workplaces, schools, businesses, and other major arenas of life, in ways that would be less likely to occur and more readily corrected if marriage were available to same-sex couples.
D. The Marriage Ban Is Not Even Rationally Related to a Legitimate Government Purpose, Let Alone Substantially Related To An Important Government Purpose Or Narrowly Tailored To A Compelling Governmental Purpose.
37. No legitimate, let alone impmiant or compelling, interest exists to exclude samesex couples from marriage. An individual's capacity to establish a loving and enduring relationship does not depend upon sexual orientation or his or her sex in relation to his or her committed life partner, nor is there even any legitimate interest in preventing same-sex couples
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and their children from belonging to families headed by a married couple, or in denying them the spousal protections marriage provides.
38. Neither history nor tradition can justify the marriage ban. Marriage has remained a vital and enduring institution despite undergoing significant changes over time to meet changing social and ethical needs, including by the elimination of many former requirements of marriage that we now recognize as discriminatory or otherwise impermissible -- such as racebased entry requirements, and gendered restrictions -- that historically were considered integral aspects of marriage. West Virginia is not confined to historic notions of equality, and no excuse for the State's discriminatory restriction can be found in the pedigree of such discrimination.
39. The Supreme Court has made clear that the law cannot, directly or indirectly, give effect to private biases and expressly rejected moral disapproval of lesbian and gay relationships as a legitimate justification for a law.
40. Excluding same-sex couples from marriage does nothing to protect or enhance the rights of different-sex couples. Different-sex couples will continue to enjoy the same rights and status conferred by marriage regardless of whether same-sex couples may marry.
4 l. Although the State has a valid interest in protecting the public fiscally, it may not pursue that interest by making invidious distinctions between classes of its citizens without adequate justit1cation. Moreover, the State has no fiscal justification here for denying same-sex couples the freedom to marry because the State would generate additional revenues by allowing same-sex couples to marry, and be recognized as married.
42. The State's interest in child welfare is affirmatively harmed rather than furthered by the marriage ban. The marriage ban injures same-sex couples' children without offering any benefit to other children.
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43. Barring same-sex couples from marriage does not prevent same-sex couples from raising children together. Same-sex couples in West Virginia can and do bear children through use of reproductive technology that is available to same-sex couples and different-sex couples alike, and bring children into their families through foster care and adoption. Procreation is not a requirement of marriage, and many married people choose not to have children, while many unmarried people procreate. West Virginia has never restricted marriage to those capable of or intending to procreate, nor would it be constitutionally permissible to do so.
44. There is no valid basis for the State to assert a preference for parenting by different-sex couples over same-sex couples. Based on more than 30 years of research, the scientific community has reached consensus that children raised by same-sex couples are just as well-adjusted as children raised by different-sex couples. This consensus has been recognized by every major professional organization dedicated to children's health and welfare including the American Academy of Pediatrics, the American Psychological Association, the American Medical Association, the National Association of Social Workers, and the Child Welfare League of America.
45. Other courts have found, after trials involving expe11 testimony, that there is not even a rational basis for favoring parenting by heterosexual couples over gay and lesbian couples. See, e.g., Perry v. Schwarzenegger, 704 F. Supp.2d 921, 980 (N.D. Cal. 201 0) (finding that the research supporting the conclusion that "[c]hildren raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted" is "accepted beyond serious debate in the field of developmental psychology"), aff'd sub nom, Perry v. Brown, 67] F.3d 1052 (9th Cir. 2012), vacated for lack of standing sub nom, Hollingsworth v. Perry, No. 12-144, 2013 WL 3196927 (U.S. June 26, 2013); In reAdoption r~l
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Doe, 2008 WL 5006172, at *20 (Fla. Cir. Ct Nov. 25, 2008) ("[B]ased on the robust nature of the evidence available in the field, this Court is satisfied that the issue is so far beyond dispute that it would be irrational to hold otherwise; the best interests of children are not preserved by prohibiting homosexual adoption."), aff'd sub nom, Florida Dep 't qf Children & Families v. Adoption ofXXG., 45 So.3d 79 (Fla. Dist. Ct. App. 2010); Howard v. Child Welfare Agency Review Bd., Nos. 1999-9881,2004 WL 3154530, at *9 and 2004 WL 3200916, at *3-4 (Ark. Cir. Ct. Dec. 29, 2004) (holding based on factual findings regarding the well-being of children of gay parents that "there was no rational relationship between the [exclusion of gay people from becoming foster parents] and the health, safety, and welfare of the foster children."), aff'd sub nom, Dep't ofHuman Servs. v. Howard, 238 S.W.3d 1 (Ark. 2006).
46. Excluding same-sex couples from marriage harms their children, including by branding their families as inferior and less deserving of respect, and by encouraging private bias and discrimination. Denying same-sex couples the equal dignity and status of marriage humiliates the children now being raised by same-sex couples, and makes it more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.
47. Excluding same-sex couples from civil marriage will not make the children of different-sex spouses more secure. Different-sex spouses' children will continue to enjoy the benefits that flow from their parents' marriage, regardless of whether same-sex couples are permitted to marry. The marriage ban has no effect on the choices different-sex couples make about such profound issues as whether to marry, whether to have children, or whether to raise their children within marriage.
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48. The State's interest in the welfare of children parented by same-sex couples is as great as its interest in the welfare of any other children. The family security that comes from the State's official recognition and support is no less important for same-sex parents and their children than it is for different-sex parents and their children.
49. Excluding same-sex couples from marriage does nothing to protect or enhance the rights of different-sex spouses. Different-sex spouses will continue to enjoy the same rights and status conferred by marriage regardless of whether same-sex couples may marry, unimpaired by the acknowledgment that this freedom belongs equally to lesbians and gay men.
CLAIMS FOR RELIEF COUNT I:
Deprivation of Due Process U.S. Const. Amend. XIV
(42 u.s.c. § 1983)
50. All Plaintiffs incorporate by reference and reallege all of the preceding paragraphs of this Complaint as though fully set forth herein.
51. All Plaintiffs state this cause of action against Defendants m their official capacities for pmposes of seeking declaratory and injunctive relief.
52. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S.C. § 1983, provides that no state shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const. Amend. XIV,§ 1.
53. The right to marry the unique and irreplaceable person of one's choice and to direct the course of one's life in this intimate realm without undue government restriction is one of the f'tmdarnental liberty interests protected by the Due Process Clause of the Fourteenth Amendment. Indeed, the essence of the fundamental right to marry is freedom of personal choice in selecting one's spouse.
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54. W.Va. Code §§ 48-2-104, 48-2-401, and 48-2-603, and all other sources of West Virginia law that preclude marriage for same-sex couples or prevent recognition of their marriages violate the due process guarantee of the Fourteenth Amendment both facially and as applied to all Plaintiffs. Defendants' actions to enforce the marriage ban directly and impermissibly infringe on the adult Plaintiffs' choice of whom to marry, interfering with a core, life-altering and intimate personal choice.
55. The Due Process Clause also protects choices central to personal dignity and autonomy, including each individual's rights to family integrity and association. Defendants' actions to enforce the marriage ban directly and impermissibly infringe adult Plaintiffs' deeply intimate, personal, and private decisions regarding family life, and preclude all Plaintiffs from obtaining full libe11y, dignity, and security for themselves, their families, and their parent-child bonds.
56. As the Cabell and Kanawha County clerks, Defendants Cole's and McCormick's duties and actions to ensure compliance with West Virginia's discriminatory marriage ban by, for example, denying same-sex couples marriage licenses, violate adult Plaintiffs' fundamental right to marry, and the rights protected under the Fourteenth Amendment to the United States Constitution, to liberty, dignity, autonomy, family integrity, association, and due process of all Plaintiffs.
57. Defendants cannot satisfy the Due Process Clause's decree that government's denial of a fundamental right or substantial infringement of a liberty interest may be sustained only upon a showing that the burden is narrowly tailored to serve a compelling or even important governmental interest, as the marriage ban is not even tailored to further any legitimate interest at all.
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58. Thus, Defendants, acting under color of state law, are depriving plaintiffs of rights secured by the Due Process Clause of the Fourteenth Amendment to the United States Constitution in violation of 42 U.S.C. § 1983.
COUNT II: Deprivation of Equal Protection
U.S. Const. Amend. XIV
(42 u.s.c. § 1983)
59. All Plaintiffs incorporate by reference and reallege all of the preceding paragraphs of this Complaint as though fully set forth herein.
60. All Plaintiffs state this cause of action against Defendants 111 their official capacities for purposes of seeking declaratory and injunctive relief.
61. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S.C. § 1983, provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. Canst. Amend. XIV, § 1.
62. W.Va. Code §§ 48-2-104, 48-2A01, and 48~2~603 and all other sources of West Virginia law that preclude marriage for same-sex couples or prevent recognition of marriages violate the equal protection guarantee of the Fourteenth Amendment both facially and as applied to Plaintiffs.
63. As the Cabell and Kanawha County clerks, Defendants Cole's and McCormick's duties and actions to ensure compliance with West Virginia's discriminatory marriage ban by, for example, denying same-sex couples marriage licenses, violates the right of Plaintiffs to equal protection by discriminating impermissibly on the basis of the adult Plaintiffs' sexual orientation and sex, and impermissibly classifying the children of same-sex couples, including Plaintiff A.S.M., on the basis of their parents' sex, sexual orientation and marital status, and by
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discriminating against all Plaintiffs in the enjoyment of equal liberties and equal exercise of fundamental rights.
64. Same~sex couples such as the Plaintiff couples are identical to different~sex couples in all of the characteristics relevant to marriage.
65. Same-sex couples make the same commitment to one another as different-sex couples. Like different-sex couples, same-sex couples fall in love, build their lives together, plan their futures together, and hope to grow old together. Like different-sex couples, same-sex couples support one another emotionally and financially and take care of one another physically when faced with injury or illness. Plaintiff couples seek to marry for the same emotional, romantic, and dignitary reasons and to provide the same legal shelter to their families, as different-sex spouses.
66. Like some different-sex couples, some same-sex couples are parents rmsmg children together.
67. Plaintiffs are equally worthy of the tangible rights and responsibilities, as well as the respect, dignity, and legitimacy that access to marriage confers on dit1erent-sex couples and their children. For the many children being raised by same-sex couples, including Plaintiff A.S.M., the tangible resources and societal esteem that access to marriage confers is no less precious than for children of different-sex couples.
68. Discrimination Based on Sexual Orientation. The marriage ban targets lesbian and gay West Virginians as a class for exclusion from marriage and discriminates against each adult Plaintiff based on his or her sexual orientation, both facially and as applied, and against A.S.M. based on the sexual orientation ofhis parents, both facially and as applied.
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69. The exclusion of Plaintiffs from families headed by married couples based on the adult Plaintiffs' sexual orientation subjects Defendants' conduct to strict or at least heightened scrutiny, which Defendants' conduct cannot withstand because the exclusion does not even serve any legitimate governmental interests, let alone any important or compelling interests, nor does it serve any such interests in an adequately tailored manner.
70. Lesbians and gay men have suffered a long and painful history of discrimination in West Virginia and the United States.
71. Sexual orientation bears no relation to an individual's ability to contribute to society.
72. Sexual orientation is a core, defining trait that is so fundamental to one's identity and conscience that a person may not legitimately be required to abandon it (even if that were possible) as a condition of equal treatment.
73. Sexual orientation generally is fixed at an early age and highly resistant to change through intervention. No credible evidence supports the notion that such interventions are either effective or safe; indeed, they often are harmful and damaging. No mainstream mental health professional organization approves interventions that attempt to change sexual orientation, and virtually all of them have adopted policy statements cautioning professionals and the public about these treatments.
74. Lesbians and gay men are a discrete and insular minority, and ongoing prejudice against them continues seriously to curtail the operation of those political processes that might ordinarily be relied upon to protect minorities. Gay people have fewer civil rights protections at the state and federal level than racial minorities and women had when race- and sex-based classifications were declared to be suspect and quasi-suspect, respectively.
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75. Lesbians and gay men lack express statutory protection against discrimination in employment, public accommodations, and housing at the federal level and in more than half the states, including West Virginia; are systematically underrepresented in federal, state, and local democratic bodies; have been stripped of the right to marry through 30 state constitutional amendments and are currently not permitted to marry in a total of 37 states; and have been targeted across the nation through the voter initiative process more than any other group.
76. Discrimination Based on Sex. West Virginia's marriage ban discriminates against adult Plaintiffs on the basis of their sex, both facially and as applied, barring adult Plaintiffs from marriage or from being recognized as validly married, solely because each of the adult Plaintiffs wishes to marry a life partner of the same sex. The marriage ban discriminates against Plaintiff A.S.M. based on the sex of his parents, both facially and as applied. The sexbased restriction is plain on the face of West Virginia's laws, which restrict marriage to "union[s] between a woman and a man," W.Va. Code§ 48-2-104, and prohibit recognition of marriages in other states "between persons of the same sex," W.Va. Code§ 48-2-603.
77. Because of these sex-based classifications, Casie, for example, is precluded from marrying Sarah because Casie is a woman and not a man; were Casie a man, she could marry Sarah.
78. West Virginia's marriage ban also impermissibly enforces conformity with sex stereotypes by excluding adult Plaintiffs from marrying the one person each Plaintiff loves, because Plaintiffs have failed to conform to the sex-based stereotypes that men should many women, and that women should marry men.
79. The exclusion of adult Plaintiffs from marnage based on their sex, and the marriage ban's requirement that adult Plaintiffs behave in conformity with sex-based stereotypes
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as a condition of being able to many, cannot survive the heightened scrutiny required for sexbased classifications.
80. Discrimination Based on Parental Status. The mamage ban impermissibly classifies children, including Plaintiff A.S.M., on the basis of their parents' sex, sexual orientation and marital status, denying such children, including Plaintiff A.S.M., the dignity, legitimacy, security, support and protections available to children whose parents can marry. The State's differential treatment of children based upon their parents' status cannot survive the heightened scrutiny required for classifications based on parental status.
81 . Discrimination With Respect to Fundamental Rights and Liberty Interests Secured by the Due Process Clause. The marriage ban discriminates against adult Plaintiffs based on sexual orientation and sex with respect to access to the fundamental right to marry, and against all Plaintiffs with respect to their liberty interests in dignity, autonomy, and family integrity and association. Differential treatment with respect to exercise of fundamental rights and liberty interests subjects Defendants' conduct to strict or at least heightened scrutiny, which Defendants' conduct cannot withstand.
DECLARATORY AND INJUNCTIVE RELIKF COUNT III:
Federal Rules of Civil Procedure, Rules 57 and 65 (28 U.S.C. §§ 2201 and 2202)
82. All Plaintiffs incorporate by reference and reallege all of the preceding paragraphs of this Complaint as though fully set forth herein.
83. This case presents an actual controversy because Defendants' present and ongoing denial of equal treatment and liberty to all Plaintiffs subjects them to serious and immediate harms, warranting the issuance of a declaratory judgment.
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84. All Plaintiffs seek preliminary and/or permanent injunctive relief to protect their constitutional rights and avoid the injuries described above. A favorable decision enjoining Defendants would redress and prevent the irreparable injuries to Plaintiffs identified herein, for which Plaintiffs have no adequate remedy at law or in equity.
85. The State will incur little to no burden in allowing same-sex couples to marry, whereas the hardship for all Plaintiffs of being denied equal protection and liberty is severe, subjecting them to an irreparable denial of their constitutional rights. The balance of hardships thus tips strongly in favor of all Plaintiffs.
J>RAYER FOR RELIEF WHEREFORE, all Plaintiffs respectfully request that this Court enter judgment: A. Declaring that the provisions and enforcement by Defendants of W.Va. Code §§ 48-2- I 04, 48-2-401, and 48-2-603 and any other sources of West Virginia law that exclude same-sex couples from marriage or from recognition of marriages entered into in another jurisdiction violate all Plaintiffs' rights under the Due Process Clause and Equal Protection Clause of the Fomieenth Amendment to the United States Constitution; B. Pennanently enjoining enforcement by Defendants of W.Va. Code §§ 48-2-104, 48-2-401, and 48-2-603 and any other sources of state law that exclude same-sex couples from marriage or refuse recognition to the marriages of same-sex couples entered into in another jurisdiction; C. Requiring Defendants in their official capacities to accept applications and issue marriage licenses to same-sex couples on the same terms as different-sex couples, and to record the valid marriages of same-sex couples from other jurisdictions on the same terms as the valid marriages of different-sex couples from other jurisdictions;
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D. Awarding all Plaintiffs their costs, expenses, and reasonable attorneys' fees
pursuant to, inter alia, 42 U.S.C. § 1988 and other applicable laws; and
E. Granting such other and further relief as the Comi deems just m1d proper.
F. The declaratory and injunctive relief requested in this action is sought against
each Defendant; each Defendant's officers, employees, and agents; and against all persons acting
in cooperation with m1y Defendant, or m1der a Defendm1t' s supervision, direction, or control.
DATED: October 1, 2013
Respectfully submitted,
CASIE JO MCGEE and SARAH ELIZABETH ADKINS, et al.
By Counsel:
s/ John H. Tinney, Jr. THE TINNEY LAW FIRM, PLLC John H. Tinney, Jr. (WVSB #6970) Heather Foster Kittredge (WVSB #8543) P.O. Box 3752 Charleston, West Virginia 25337-3752 Phone: (304) 720-3310 Fax:(304)720-3315 JackTinney@tinneylawfirm.com IIKittredgeif.illjnneylawiirm.com
LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. Elizabeth L. Littrell (pro hac vice pending) 730 Peachtree Street N.E. Suite 1070 Atlanta, Georgia 30308-1210 Email: blittrell(cl),lambdalegal.org Phone:(404)897-1880 Fax:(404)897-1884
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Karen L Loewy (pro hac vice pending) 120 Wall Street, 19th Floor New York, New York 10005-3904* Phone: (212) 809-8585 Fax: (212) 809-0055 kloewy(c41ambdalegal.org *Admitted only in Massachusetts Camilla B. Taylor (pro hac vice pending) 105 West Adams, 26th Floor Chicago, Illinois 60603-6208 Phone: (312) 663-4413 Fax: (312) 663-4307
f!:1!Jd~?L@1;;nnbdalegal.org
JENNER & BLOCK LLP Paul M. Smith (pro hac vice pending) R. Trent McCotter (pro hac vice pending) Luke C. Platzer (pro hac vice pending) Lindsay C. Harrison (pro hac vice pending) 1099 New York Avenue, NW Suite 900 Washington, D.C. 20001-4412 Phone: (202) 639-6000 Fax: (202) 639-6006 psmith@jenner.com lplatzer(G?jenner.com lharrison(?vj enner.com
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 HUNTING

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
TON DIVISION

CASIE JO MCGEE and SARAH ELIZABETH ADKINS; JUSTIN MURDOCK and WILLIAM GLAVARIS; and NANCY ELIZABETH MICHAEL and JANE LOUISE FENTON, individually and as next friends of A.S.M., minor child,

Plaintiffs,

v.

CIVIL

KAREN S. COLE, in her official capacity as CABELL COUNTY CLERK; and VERA J. MCCORMICK, in her official capacity as KANAWHA COUNTY CLERK,

Defendants, and

STATE OF WEST VIRGINIA

Intervenor

Defendant.

ACTION NO. 3:13-24068

MEMORANDUM OPINION AND ORDER

This case is one of m any pro ceeding through the federal courts to ch allenge same-sex

marriage bans in the wake of the Un ited States Supreme Court decision in Windsor, decided just

over one year ago. As nearly every decided case has concluded that the marriage bans violate the

fundamental right of individuals to marry, the pace of this litigation accelerated dramatically in the

past few months and culminated with the Supreme Court’s denial of appeals from federal circuit

court decisions finding these marriage bans

unconstitutional. This Court explicitly

acknowledged the likely binding resu lt of the case which arose in th is Circuit, discussed in m ore

detail below, and stayed the proceedings here pending its resolution. Now, that binding precedent and the acceptance by key state and county officials of its effect provide a clear blueprint for this Court’s ruling.
The right to m arry is a funda mental right , giving every individual the opportunity to exercise choice in this important relationship. As such, the government must not interfere in that choice un less it d emonstrates com pelling state inte rests an d carefully tailor s its re strictions to protect thos e intere sts. W hile some m ay continue to hold a re ligious or m oral o bjection to same-sex marriage, governmental restrictions on individual rights must be justified by more than simply strongly, or even widely, held opinions ortraditions. Use of government power to prohibit the exercise of the right to marry fails to meet this test.
For the reasons stated below, Plaintiff’s Motion for Summary Judgment (ECF No. 40) is GRANTED. Defendant Vera J. McCorm ick’s Moti on to Dism iss (ECF No. 26), Defendant Karen S. Cole’s Motio n to Dism iss (ECF No. 31), Defendants’ Joint Motion for Summary Judgment (ECF No. 62), the State of West Virginia’s Cross-Motion for Summary Judgment (ECF No. 66), and the State of W est Virginia’s Motion to Dism iss (ECF No. 85) are DENIED. The State of W est Virgin ia’s Motion to Continue Me rits Stay and to Cale ndar Oral Argum ent on Threshold Issues (ECF No. 126) is DENIED in part and DENIED AS MOOT in part . Plaintiff’s Cross-Motion to Lift Stay and Enter Judgment (ECF No. 127) is DENIED AS MOOT. Plaintiff’s Motion and Amended Motion to Lift Stay and Enter Judgment (ECF No. 131, ECF No. 132) are GRANTED
I. Statement of Facts Plaintiffs in this case s eek declaratory reli ef o verturning West Vi rginia Code Sections 48-2-104 and 48-2-401, as well as “any other sources of West Virginia law that exclude same-sex
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couples from marriage” (collectively called the “marriage ban”). ECF No. 8. Plaintiffs also seek an injunction prohibiting Defendant Clerks from enforcing the marriage ban.
West Virginia Code Section 48-2-104 li sts the requirem ents for m arriage license applications. Among other requirements, “[t]he application for a marriage license must contain a statement of the f ull nam es of both the f emale and the male parties” and “ must contain the following statement: ‘Marriage is designed to be a loving and lifelong union between a woman and a m an.’” W. Va. Code § 48- 2-104(a) & (c) (2012). Secti on 48-2-401 governs persons authorized to perform marriages and states in part, “Celebration or solemnization of a m arriage means the perform ance of the formal act or cerem ony by which a m an and woman contract marriage and assume the status of husband and wife.” W. Va. Code § 48-2-401 (2001).
Plaintiffs are six gay and le sbian West Virginians, com prising three sam e-sex adult couples: Casie Jo McGee and Sarah Elizabeth Adkins; Justin Murdock and William Glavaris; and Nancy Elizabeth Michael and Jane Louise Fenton, and A.S.M., the minor child of Ms. Michael and Ms. Fenton. Plaintiffs brought this action pursuant to 42 U.S.C. § 1983 against Karen S. Cole, in her official capacity as Cabell C ounty Clerk, and Vera J. McCorm ick, in her official capacity as Kanawha County Clerk. ECF No. 8. Defendant Clerks are responsible for issuing m arriage licenses and recording marriages that take place in jurisdictions outside of West Virginia. Their responsibilities include ensuring that m arriage licenses and r ecords comply with West Virginia law, including the m arriage ban. Each of the same-sex couples sought a m arriage license from one of the defendant clerks, and each was initially denied. Plaintiffs contend that Defendants are violating Plaintiffs’ due processrights and equal protection rights,as guaranteed by the Fourteenth Amendment to the United States Constitution. Since the filing of the pending motions, the State of West Virginia ( “the State”) has directed cou nty clerks to issue m arriage licenses to sam e-sex
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couples. ECF No. 134. West Virginia’s m arriage ban, however, rem ains in place. Plaintiffs accordingly request th at this Cou rt declare the m arriage ban unconstitu tional a nd enjoin enforcement of the marriage ban by Defendant Clerks.
The State intervened as a defendant, pursuant to 28 U.S.C. § 2403(b) and Federal Rules of Civil Procedure 5.1(c) and 24(a), to defend the constitutionality of the marriage ban. ECF No. 25.
The defendant clerks each filed a motion to dismiss. This Court addressed their motions in part in a previous order, but reserved ruling on their motions as to the second prong of Burford abstention. ECF No. 56. The State has also file d a motion to dismiss. Plaintiffs, Defendants, and the State have each filed a motion for summary judgment. The State has also filed a motion to stay and to schedule oral ar gument on the th reshold issu es in this ca se, to which Plaintif fs responded with a cross-m otion to lift the stay and enter judgment. Plaintiffs later filed another motion and an amended motion to lift the stay and enter judgment.
In Section II, the Court discu sses the State’s motion to dismiss and the clerks’ respective motions to dismiss. Section III addresses the parties’ motions for summary judgm ent. Section IV briefly examines the State’s m otion to stay a nd schedule oral argum ent, as well as Plaintiff’s responsive cross-m otion. Finally, Section V di scusses Plaintiffs’ most recent m otion and amended motion to lift the stay and enter judgment.
II. Motions to Dismiss A. Legal Standard A motion to dism iss pur suant to Rule 12(b)(1 ) of the Federal Rules of Civil Procedure raises the fundamental question of whether a court is competent to hear and adjudicate the claims brought before it. Fed. R. Civ. P. 12(b)(1). It is axiomatic that a court must have subject matter jurisdiction over a controversy before it can render any decision on the merits. Adkins v. United
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States, 923 F. Supp. 2d 853, 856 (S.D. W . Va. 2013). If a Court does not have subject m atter jurisdiction over a case, the case must be dismissed. See id.
Challenges to jurisdiction under Rule 12(b)(1) may be raised in two distinct ways: “facial attacks” and “factual attacks.” Thigpen v. United States, 800 F.2d 393, 401 n.15 (4th Cir.1986), rejected on other grounds, Sheridan v. United States , 487 U.S. 392 (1988). A “facial attack” questions whether the allegations in the complaint are sufficient to sustain the court’s jurisdiction. Id. If a “facial attack” is made, the court must accept the allegations in the complaint as true and decide if the complaint is sufficient to confer subject matter jurisdiction. Id.
On the other hand, a “factual attack” challenges the truthfulness of thefactual allegations in the complaint upon which subject matter jurisdiction isbased. In this situation, a “district court is to regard th e pleadings’ allegations as m ere evidence on th e issue, and may consider eviden ce outside the plead ings without converting the proceed ing to one fo r summ ary judgm ent.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.1991) (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982); Trentacosta v. Frontier Pac. Aircraft Indus., 813 F.2d 1553, 1558 (9th Cir.1987)).
B. The State’s Motion to Dismiss Here, the State’s motion to dismiss raises a facial attack. The State argues that Plaintiffs do not have Article III standing, and therefore this Court does not have jurisdiction, because Plaintiffs have failed to sue the defendants to whom their injury can be properly traced. ECF No. 86. Under Article III o f the United States Cons titution, a plaintiff has standing only if she can demonstrate that her “injury is ‘fairly traceable’ to the actions of the defendant, and that the injury will likely be redressed by a f avorable decision.” Bennett v. Spear , 520 U.S. 154, 162 (1997) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). Although an injury is not
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fairly traceable to th e defendant if it is cau sed exclusively by the acts of some third party, “that does not exclude injury produced by determinative or coercive effect upon the action of someone else.” Id. at 169. The party invoking the court’s juri sdiction bears the burden of establishing standing. Lujan, 504 U.S. at 561.
The State maintains that Plaintiffs do not have standing because they did not sue the State Registrar and Secretary of State. ECF No. 86. The State Registrar is exclusively responsible for creating marriage license applications and, the Stat e claims, is therefore the only offi cial tasked with carrying out West Virginia Code § 48-2-104. ECF No. 86. Likewise, the Secretary of State is solely responsible for determining which religious celebrants may solemnize marriages in West Virginia. ECF No. 86. County clerks, the S tate explains, are only res ponsible f or accepting applications for marriage licenses and issuing those licenses. ECF No. 86.
Plaintiffs here chose to sue the cou nty clerks o f Cabell and Kanawha counties b ecause those clerks refused to issue marriage licenses to the same-sex couple plaintiffs. ECF No. 8. A marriage license is necessary to legally m arry under the laws of West Virg inia. W . Va. Code. § 48-2-101 (2001). By refusing to issue licenses, the clerks themselves directly took action which the plaintiffs claim violated their rights under the F ourteenth Am endment. ECF No. 8. The denial of marriage licenses is the p recise injury for which the plaintiffs seek redress in this cas e. ECF No. 8. Plaintiffs do not s eek an injunc tion requ iring the Sta te Registr ar to change th e marriage forms in West Virginia, nor do they seek to compel the Secretary of State to change the manner in which religious celebrants are authorized to perform marriages in the State. ECF No. 8. W hat the plaintiffs request is an injunc tion requiring the county cl erks to issue m arriage licenses to same-sex couples. ECF No. 8. This is an act that can be taken by the county clerks, as they are the officials responsible for issuing licenses in their respective counties. See ECF No.
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86. Furthermore, this is an act that will directly redress the injury complained of in this case, that

is, the denial of marriage licenses to same-sex couples. See ECF No. 8. See Bostic v. Shaefer,

760 F.3d 352, 371 (4th Cir. 2014) (“[L]icense de

nial constitutes an injury f or standing

purposes . . . [Plaintiffs] can trace this den ial to [ Clerk’s] enf orcement of the alleged ly

unconstitutional Virginia Marriage Laws, and declaring those laws unconstitutional and enjoining

their enforcement would redress [Plaintiffs’] injuries.”).

The State Registrar m ay be the only official au thorized to alter West Virginia’s marriage

forms, but other courts have afforded injunctive relief requiring officials to interpret existing laws

and forms in a way that is const itutional, rather than requiring the officials to physically change

their contents. See Califano v. Westcott , 443 U.S. 76, 89-90 (1979) (affi rming district court’s

decision to extend federal benefits statute to cov er previously excluded class be cause statute, as

originally enacted, violated equal protection clauses); Griego v. Oliver, 316 P.3d 865, 889 (N.M.

2013) (“[In] New Mexico statutes, rules, regulati ons, or the common la w, whenever reference is

made to m arriage, husband, wife, spouse, fa mily, imm ediate fam ily, dependent, next of kin,

widow, widower or any other word, which, in cont ext, denotes a m arital relationship, the sam e

shall apply to same-gender couples who choose to marry.”). Clearly, the Court here can direct the

defendants to issue marriage licenses without directing the State Registrar to issue different forms.

Likewise, the plaintiffs here do not challenge theSecretary of State’s decisions regarding religious

celebrants. Rather, th ey challeng e the enti re ban on sam e-sex m arriage. ECF No. 8.

Accordingly, these parties are not necessary to afford the plaintiffs injunctive relief.

Moreover, the State has not dem onstrated that it is nec essary to join eith er the State

Registrar or the Secretary of Stat e in order to award declaratory re lief. The State maintains that

the doctrine of sovereign immunity under the Eleventh Amendment bars declaratory relief in this

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case. ECF No. 86. Sovereign immunity protects the State from direct suit and f rom actions
seeking retrospective, monetary relief. See Edelman v. Jordan, 415 U.S. 651, 676 (1974). Here,
the plaintiffs did not bring direct action against the State, nor do they seek monetary or injunctive
relief against the State. Instead, the State chose to intervene in this action specifically to defend
the constitutionality of West Virginia’s marriage ban. By intervening to protect this interest, the State is sub ject to any decla ration by th is Cou rt th at th e ban is unco nstitutional.1 Even if
sovereign immunity does shield the State from the immediate effect of the Court’s d eclaration,
Plaintiffs’ injury here is directly traceable to the defendants and the Court can thu s afford the
plaintiffs f ull re lief with respe ct to Def endant Clerks. See Bennett , 520 U.S. at 162.
Accordingly, Plaintiffs have standing and this Court has subject-matter jurisdiction over this case.
C. Defendants’ Motions to Dismiss
Defendant Clerks have each filed a motion to dismiss. ECF No. 26; ECF No. 31. They
also raise a facial attack, arguing that the Court should abstain from exercising jurisdiction in this
case under the Burford abstention doctrine. As the Defendants’ arguments substantially overlap,
the Court will address their motions to dismiss together.
1 The State’s Eleventh Amendment defense may also fail under the exception to state sovereign immunity recognized in Ex Parte Young, 209 U.S. 123 (1908). Under Ex Parte Young, a plaintiff may challenge a state law as unconstitutional by suing a state oficial responsible for administering and enforcing that law. See Ex Parte Young, 209 U.S. at 155-56. Although the defendants here are county, rather than state, officials, they may be proper defendants in an Ex Parte Young suit. In Bostic, the Fourth Circuit held that a county clerk was a proper defendant underEx Parte Young because the clerk had “the requisite connection to the enforcement of the Virginia Marriage Laws due to his role in granting and denyingapplications for marriage licenses.” Bostic, 60 F.3d at 371 n. 3; see also Griffin v. Cnty. Scho ol Bd. of Prince Edward Cnty. , 377 U.S. 218, 228 (1964) (acknowledging that “suits against state and county officials” to enjoin unconstitutional action are permitted under Ex Parte Young ). Here, Defendant Clerks are th e officials directly responsible for effectuating the marriage ban and causing Plaintiffs’ alleged injury. Accordingly, this action may be a proper Ex Parte Young suit, by which Plaintiffs can obtai n prospective, equitable relief against the State.
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There is only a “narrow range of circumstances in which Burford can justify the dismissal of a federal action.” Quackenbush v. Allstate Ins. Co. , 517 U.S. 706, 726 (1996). The Burford abstention doctrine provides that “[c]ourts should abstain from deciding cases presenting ‘difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case th en at bar,’ or whose adjudication in a f ederal forum ‘would be disruptive of state efforts to establish a coherent policy with respe ct to a m atter o f substantia l public concern.’” First Penn-Pac. Life Ins. Co. v. Evans , 304 F.3d 345, 348 (4 th Cir. 2002) (emphasis added) (quoting New Orleans Pub. Serv., Inc. v. Council of New Orleans,491 U.S. 350, 361 (1989) (“NOPSI”)). If either one of these two groundsfor abstention is met, the Court should not exercise jurisdiction. As this Court held in its previous or der of January 29, 2014, this case does not involve difficult questions of stat e law, and therefore the f irst ground for Burford abstention is not met. ECF No. 56.
The second ground for Burford abstention exists where federal jurisdiction would interrupt the State’s interest in regulatory unifor mity. See NOPSI, 491 U.S. at 362. Whether to abstain under Burford is an “equitable decision [that] balances the strong federal interest in having certain classes of cases, and certain federal rights, adjudicated in federal court, against the State’s interests in maintaining ‘uniformity in the treatment of an essentially local problem.’” Quackenbush, 517 U.S. at 728 (quoting NOPSI, 491 U.S. at 362). Burford abstention may apply where the Court determines that “the State’s interests are paramount and that a dispute would best be adjudicated in a state forum.” Id. at 728. Where, as here, the only ques tion involved is one of federal law , Burford abstention is generally inappropriate. See Martin v. Stewart, 499 F.3d 360, 368 (4th Cir. 2007) (holding that federal courts generally may not abstain from deciding purely federal issues); Harper v. Pub. Serv. Comm’n of West Virginia, 396 F.3d 348 (4th Cir. 2005) (holding that federal
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jurisdiction would not disrupt state policy because case presented federal question under the Commerce Clause).
Here, Defendants argue that if this court awards Plaintiffs their requested relief, only the clerks of Cabell and Kanawha counties will be enjoined from refusing to issue marriage licenses to same-sex couples. ECF No. 27; ECF No. 31. This, Defendants argue, would disrupt uniformity among the counties of W est Virginia. The Cour t disagrees. First, Plaintiffs request both injunctive and declaratory relief . A declaration by this c ourt tha t th e m arriage ban is unconstitutional would strike down the ban entirely, not just as applied to the def endant clerks. Even if declaratory relief cannot extend beyond the named defendants, the State has intervened in this case to defend the c onstitutionality of the marriage ban. The State has had a f ull and f air opportunity to litigate the constitutionality of the m arriage ban in this case. Accordingly, under the doctrine of res judicata, a declaratory judgment from this court would preclude the State from relitigating the issue in future proceedings. See Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394 (1981) (“A final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.”). In other words, the ruling would create uniform ity becau se the Stat e would be preclud ed from defending th e constitutionality of the m arriage ban in th e future.2 Second, in light of the ruling from the U.S. Circuit Court of Appeals for the Fourth Circuit in Bostic v. Shaefer, 760 F.3d 352 (4th Cir. 2014), the State has discontinued its enforcem ent and defense of the m arriage ban. ECF No. 134; see also Erin Beck, W. Va. Ends Ban on Gay Marriage: Governor, A.G. Direct Their Staff to Follow
2 Plaintiffs also contend that any judgm ent in this case would bind all county clerks in W est Virginia because there is privity between the defendant clerks a nd the rem aining county clerks. ECF No. 61. The Court declines to reach this issue. The remaining county clerks are not parties in the p resent case. Whether they are in priv ity with the defendant clerks for purposes of preclusion is a thus not an issue properly before the Court at this time.
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Ruling of A ppeals Court, Charleston Gazette (WV), Oct. 10, 2014, available at Westlaw, 2014
WLNR 28289127. Therefore, even if this Court’s ruling only applies to the defendant clerks, it
will not disrupt uniformity among the counties because the governor of West Virginia has already instructed all county clerks to issue marriage licenses to sam e-sex couples.3 See ECF No. 134;
Beck, W. Va. Ends Ban on Gay Marriage . Third, defendants cannot require that plaintiffs join
every possible party, when the parties sued are sufficient to award the requested relief. Plaintiffs
properly sued the two county clerks who refusedto issue marriage licenses under to the challenged
marriage ban. ECF No. 8; see Wolf v. Walker , 9 F. Supp. 3d 889, 895 ( W.D. W is. 2014)
(explaining that plaintiffs prope rly sued clerks who denied th em marriage licenses and did not
need to sue every county clerk in W isconsin). Finally, Plaintiffs here “have the right under 42
U.S.C. § 1983 to bring a lawsuit to vindicate their own constitutional rights.” See Wolf, 9 F. Supp.
3d at 895. The important constitutional rights at issue in this case outweigh the State’s interest in
developing its marriage policy without scrutiny from the federal courts. See Zablocki v. Redhail,
434 U.S. 374, 379 n.5 ( 1978) (“[T]here is, of cour se, no doctrine requiring abstention m erely
because resolution of a federal question m ay result in th e overturning of a state policy.”). For
these reasons, the Court refuses to abstain under Burford.
Defendant McCormick and the State also m aintain that abstention is proper pursuant to
Baker v. Nelson, 409 U.S. 810 (1972). ECF No. 27; ECF N o. 68. As this Court explained in a
previous order, Baker is not binding on this case. ECF No. 56. Subsequent to that order, the
3 Defendant Cole cites the governor’s decision in support of her argument that the claims against her be dism issed as m oot. ECF No. 136. Under Friends of the Earth, Inc. v. LaidL aw Envt’l Servs., Inc. , 528 U.S. 167 (2000), the “voluntary cessa tion of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” Laidlaw, 528 U.S. at 169-70. Where, as here, a govern ment entity vol untarily ceases enforcing a specific policy b ut may legally resume its enf orcement at a late r time, the court re tains jurisdiction to rule on the constitutionality of that policy, and the issue is not m oot. See id.; see also Bell v. City of Boise , 709 F.3d 890, 900 (9th Cir. 2013).
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Fourth Circuit in Bostic held: “In light of the Supreme Court’s apparent abandonment of Baker and the significant doctrinal developments that occurred after the Court issued its summary dismissal in that cas e, we decline to view Baker as binding precedent.” Bostic, 760 F.3d at 375. Accordingly, Baker does not require abstention in this case. The State’s motion to dism iss and Defendants’ respective motions to dismiss are thus denied.
III. Motions for Summary Judgment A. Legal Standard To obtain summary judgment, the moving party must show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In considering a motion for summary judgment, the Court will not “weigh the evidence and determine the truth of the matter.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Instead, the Court will draw any permissible inference from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). Summary judgment is appropriate when the nonmoving party hasthe burden of proof on an essential elem ent of his or her case and does not m ake, after adequate tim e for discovery, a showing sufficient to es tablish that elem ent. Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986). The nonmoving party m ust satisfy this burden of proof by offering m ore than a m ere “scintilla of evidence” in support of his or her p osition. Anderson, 477 U.S. at 252. The facts here are not in dispute. Each party has moved for summary judgment. ECF No. 40; ECF No. 62; ECF No. 66. It is thus the task of this Court toapply the law to the undisputed facts and determine which party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a).
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B. Defendants’ Motion for Summary Judgment Defendants filed a joint motion for summ ary judgment raising five arguments. ECF No. 62. First, Defendants argue that West Virginia law and the duties of their office require them to deny marriage licenses to same-sex couples. ECF No. 62. This is no defense to a constitutional challenge to that state law, which must yie ld to the supremacy of constitutional protections. As the governor of W est Virginia has now directed al l county clerks to issu e marriage licenses to same-sex couples, and Defendants have com plied with that directive, this argum ent is no longer supported. See ECF No. 134. Moreover, as discussed above, it is precisely because their actions were in compliance with the challenged m arriage ban that the county clerks are the proper defendants in this action. See id. This argument is thus without merit. Second, Defendants argue that Plaintiffs have failed to join two necessary parties, the State Registrar and Secretary of State. Although Defendants phrase their arguments in terms of Federal Rule of Civil Procedure 19, rather than Article III, the Court’s discussion of the proper defendants in this case, outlined above in response to the State’s motion to dismiss, is equally applicable here. The State Registrar and Secretary of State need not bejoined for this Court to afford Plaintiffs their requested relief. Third, Defendants, citing United States v. Windsor , 133 S. Ct. 2675 (2013), claim that striking down West Virginia’s marriage ban would disrupt the balance between state and federal power by interfering with the State’s authority to regulate marriage under the U.S. Constitu tion. ECF No. 62. Although this Court agrees that the pow er to regulate m arriage is reserved to the states, Plaintiffs here raise a genuine issue of federal law: whet her West Virginia’s marriage ban violates the Fourteen th Amendment of the U.S. Constitu tion. As the court in Bostic explained: “Windsor does not teach us that federalism principles can justify depriving individuals of their
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constitutional rights; it reiterates Loving’s admonition that the states must exercise their authority without trampling constitu tional g uarantees. Virg inia’s federalism -based interes t in definin g marriage therefore canno t justify its encroach ment on the fundam ental right to m arry.” Bostic, 760 F.3d at 379. Bostic’s logic a pplies with equal f orce to W est Virgin ia’s m arriage ban. Principles of federalism do not outweigh this Court’s duty to ensure that West Virginia’s laws do not violate Plaintiffs’ constitutional rights.
Fourth, Defendants claim that Baker v. Nelson controls this case and defeats Plain tiffs’ constitutional claims. As explained above, this Court and the Fourth Circuit have determined that Baker is not binding. Finally, Defendants argu e that, should this Court reach the m erits, West Virginia’s m arriage ban does not violate th e Due Proces s or E qual Protection Clauses of the Fourteenth Amendment. This argument was also rais ed by the State in its motion for summary judgment and is discussed in the following section.
C. Plaintiffs’ Motion and the State’s Cross-Motion for Summary Judgment In the ir m otion for su mmary j udgment, Plaintiffs contend th at th at W est Virginia ’s marriage ban is unconstitutional on its face. ECF No. 41. Plaintiffs argue that the ban violates their fundam ental rights under the Due Process Clause of the Fourteenth Am endment, and discriminates based on sexual orie ntation, in violation of the E qual Protection Clause of the Fourteenth Amendment. ECF No. 41. The State responded and filed a cross-m otion for summ ary judgm ent, arguing that it is entitled to judgm ent as a m atter of law on three grounds. First, the State argues th at Plaintiffs’ failure to join the State Registrar an d Secretary of State precludes this Court from granting them full relief under Federal Rule of Civil Procedure 19. ECF No. 68. Second, the State contends that Baker v. Nelson controls this case. ECF No. 68. Third, the State m aintains that W est
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Virginia’s marriage ban is constitutional. ECF No. 68. As explained in the preceding sections, the first two arguments are without merit.
The State’s third argu ment, that West Vi rginia’s m arriage ban does not violate the Fourteenth Amendment, is unavailing in light of the Fourth Circuit’s decision in Bostic v. Shaefer. In Bostic, two sam e-sex couples challeng ed Virginia’s m arriage ban. Bostic, 760 F.3d at 367. Like West Virginia’s ban, Virginia law defined marriage as between one man and one woman, and refused to recognize as valid any marriage between persons of the same sex. See id. at 368. The plaintiffs in Bostic arg ued that Virginia’s m arriage ban v iolated th e Due Proces s and Equal Protection Clauses of th e Fourteenth Amendment. Id. at 369. The court be gan its analysis by determining the app licable standard of scrutiny, noting that “[u]nder both the Due P rocess and Equal Protection Clauses, interference with a fundamental right warrants the application of strict scrutiny.” Id. at 375. The court held that marriage is a funda mental right and that “the fundamental right to m arry encompasse s the right to sam e-sex m arriage.” Id. at 376. Accordingly, the court held that strict scrutiny applies whenever a law “significantly interfere[s]” with the right of sam e-sex couples to m arry. Id. at 377. Virginia’s ban on sam e-sex marriage “unquestionably” met this test, thus the court applied strict scrutiny to determine whether the ban violated the Fourteenth Amendment. Id.
Under strict scrutiny, a law can survive only if it is justified by a compelling state interest and is narrowly drawn to achieve that interest. Id. (citing Carey v. Population Servs. Int’l , 431 U.S. 678, 686 (1977)). The defendants in Bostic raised five state interests that they argued could satisfy s trict scrutiny: “ (1) Virgin ia’s federali sm-based inte rest in m aintaining con trol over the definition of marriage within its borders, (2) the history and tradition of opposite-sex marriage, (3) protecting the institution of marriage, (4) encouraging responsible procreation, and (5) promoting
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the optimal childrearing environment.” Id. at 378. The Court held th at neither federalism nor Virginia’s history and tradition were com pelling state in terests suf ficient to ove rcome the fundamental right to marriage. Id. at 379-80. Furtherm ore, the Court held that Virginia’s marriage ban was not narrowly ta ilored to protect th e institu tion of m arriage, encoura ge responsible procreation, or prom ote an optim al environm ent for children. Id. at 380-84. The court thus concluded that Virginia’s laws “violate the Due Process andEqual Protection Clauses of the Fourteenth Amendment to the extent that they prevent same-sex couples from marrying.” Id. at 384.
The holding in Bostic controls this case.4 Like Virginia’s m arriage ban, W est Virginia law defines marriage as a “union between a woman and a man” and does not recognize same-sex marriage. W. Va. Code § 48-2-104(c). Plaintiffs here raise the same constitutional challenges to West Virgin ia’s m arriage ban th at were ra ised by the p laintiffs in Bostic. ECF No. 8. Thus, following Bostic, this Court m ust apply strict scruti ny to W est Virginia ’s m arriage ban an d determine whether the ban is narrowly tailored to achieve a compelling interest. Bostic, 760 F.3d at 377.
West Virgin ia asse rts two interes ts in banning sam e-sex m arriage: (1 ) an “intere st in expanding gay rights incrementally to avoid disruptive or unforeseen consequences from an abrupt change” and (2) “am eliorating a unique consequen ce of opposite-sex intercourse,” that is, the conception of children. ECF No. 68. The State also notes that the West Virginia legislature “was not motivated by a bare desire to harm homosexuals” when it enacted the m arriage ban. ECF No. 68. The State’s asserted interests fail for several reasons. 5 First, the State does not
4 The State concedes that Bostic “is binding precedent on the merits of this case.” ECF No. 134. 5 The Sixth Circuit in DeBoer v. Sn yder, Nos. 14-1341; 14-3057; 14-3464; 14-5291; 14-5297; 14-5818 (6th Cir. Nov. 6, 2014), reached th e opposite result. The m ajority th ere noted two
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contend that these interests were the actual motivations underlying the marriage ban. Instead, the
State calls them “conceivable” interests that the legislature “could re asonably have believed”
would benefit the State. ECF No. 68. Unlike rational basis review, under which the courts may
consider any plausible grounds for a challenged law, strict scrutiny limits the Court’s analysis to
the State’s actual purpose for enacting the challenged law. See Shaw v. Hunt, 517 U.S. 899, 908
n. 4 (1996) (“[A] racial classification cannot w ithstand strict scrutiny based upon speculation
about what ‘m ay have motivated ’ the legis lature. To be a com pelling interest, th e State m ust
show that the alleged objective w as the legis lature’s ‘actual purpose’ for the discrim inatory
classification.” (quoting Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 730, n. 16 (1982)));
F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307 (1993) (explaining that under rational basis review,
a statute stands “if there is any reaso nably conceivable state of facts that could provide a rational
basis” for th e law). The State has not cited any legislative hist ory or other evidence indicating
that the “conceivable” interests it proffers actually motivated the legislature to enact the marriage
ban. The State does contend that the ban was not motivated by animus, but that alone does not
demonstrate that the State has a compelling interest in banning same-sex marriage.
rationales in support of the m arriage bans. DeBoer v. Snyder, Nos. 14-1341; 14-3057; 14-3464; 14-5291; 14-5297; 14-5818, at 21. First, the court found the m arriage bans in Kentucky, Michigan, Ohio, and T ennessee to be rooted in the S tates’ interest in regulating procreation by providing incentives for parents to remain together. Id. But the opinion then conceded that this view of m arriage can no longer be sustained, that m arriage now serves “another value—to solemnize relationships characterized by love, affection, and commitment.” Id. at 20. Denying marital status and its benefits to a couple that cannot procreate does nothing to further the original interest of regulating procrea tion and irrationally excludes the couple from the latter purpose of marriage. Second, the majority in DeBoer implores opponents of the marriage bans to proceed slowly, through the legislative process, and justifies the bans by asserting the States’ right to take a “wait and see” approach. Id. at 21. This approach, however, fails to recognize the role of courts in the democratic process. It is the duty of the judiciary to exam ine government action through the lens of the Constitution’s protection of individual freedom. Courts cannot avoid or deny this duty just b ecause it arises du ring the con tentious public debate that often acco mpanies the evolution of policy m aking throughout the states . Judges may not simultaneously find a right violated yet defer to an uncertain future remedy voluntarily undertaken by the violators.
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Even if the asserted interests do represent th e actual objectives that the State sought to achieve by enacting the m arriage ban, these interests cannot survive strict scrutiny. The State’s first interest is avoiding an “abrupt” change to state policy. This interest is not compelling under Bostic. In Bostic, the court held that “[p]reserving the historical and traditional status quo” is not a com pelling state in terest. Bostic, 760 F.3d at 380. Furtherm ore, the court explained that legalizing same-sex marriage will not destabilize the institution of marriage. Id. at 381.
To the extent that W est Vi rginia’s interest goes beyond preserving tradition and the institution of marriage, it is still not compelling. The State’s laws directly violate the due process and equal protection rights of same-sex couples. The fact that overturning these laws may cause an “abrupt” change does not m ean that th e laws must not be overturned. Watershed decisions under the equal protection and due process clauses have often brought sudden change. In Loving v. Virgin ia, 388 U.S. 1 (1967), for exam ple, the Su preme Court struck down Virginia’s anti-miscegenation statute. Loving, 388 U.S. at 12. At the time, sixteen other states had similar laws, and penalties for m iscegenation had been “co mmon in Virginia since the colonial period.” Id. at 6. The Court’s decision had the potential to abruptly change the regulation of m arriage in Virginia and fifteen other states. See id. at 12. Nevertheless, the C ourt invalidated the law, concluding that it could not sta nd because “restricting th e freedom to m arry sole ly b ecause of racial classifications vio lates the central m eaning of the Equa l Protection Clause” and because “[t]he freedom to marry has long been recognized as one of the vitalpersonal rights essential to the orderly pursuit of happiness by free men.” Id. Likewise, restricting the freedom to marry based on sexual orientation violates the Equal Protection and Due Process Clauses. Bostic, 760 F.3d at 384. That change may come to West Virginia more immediately than the legislature had hoped is not a compelling reason to allow an unconstitutional ban to stand. Moreover, as explained above,
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West Virginia has already implemented changes to its policy on same-sex marriage and has begun to issue m arriage licenses to sam e-sex couples. ECF No. 134. It is theref ore unlikely that this Court’s decision will cause an abru pt change to current state policy. The State’s first asserted interest thus cannot survive strict scrutiny.
The State’s second proffered interest is in “ameliorating” the issues that arise “[w]hen opposite-sex couples conceive an u nplanned child and then shirk re sponsibility.” ECF No. 68. The State argues that opposite-sex and same-sex couples are not similarly situated with respect to marriage because “[o]nly one group can have unplanned pregnancies. ” ECF No. 68. That characteristic, the State concludes, “is a conceivable explanation for the Legislature’s decision to create only for that group an in centive under the law to stay toge ther.” ECF No. 68. Although the State may have a com pelling interest in prom oting oppos ite-sex m arriage an d preven ting parents from abandoning their responsibilities, the marriage ban is not narrowly tailored to achieve this goal. I n Bostic, the defendants asserted a sim ilar inte rest, arguing that Virginia sought to provide stability to oppos ite-sex relationships because they ca n result in unplanned pregnancies. See Bostic, 760 F.3d at 381. The Fourth Circuit held that if this was the marriage ban’s purpose, the law was “woefully underinclusive,” pointing out that “[s]a me-sex couples are not the only category of couples who cannot reproduce accidentally.” Id. The court continued: “Because same-sex couples and infertile opposite-sex couple s are sim ilarly situated, the Equal Protection Clause counsels against treati ng these groups differently.” Id. Moreover, the Court explained that “[p]rohibiting same-sex c ouples from marrying . . . does not serve Virginia’s goal of preventing out-of-wedlock births.” Id. at 382. West Virginia’s ba n is equally underinclusive, making no distinction between opp osite-sex couples who can conc eive children and those who cannot. See W. Va. Code §§ 48-2-104(a) & (c), 48-2-401. Furtherm ore, prohibiting sam e-sex
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marriage does not, in any m anner, prevent oppos ite-sex couples from having unwanted children and then abandoning their responsibilities with respect to those children. See Bostic, 760 F.3d at 382. The ban is thus not narrowly drawn to achie ve the State’s asserted interest. As W est Virginia’s marriage ban is no t narrowly tailored to a chieve a com pelling state interest, it canno t survive strict scrutiny.
For the foregoing reasons, Plaintiffs’ motion for summary judgment is GRANTED and the State’s cross-motion for summary judgment and Defendant’s joint motion for summary judgment are DENIED. The Court grants the Plaintiffs’ request ed relief and hereby declares that W est Virginia Code § 48-2-104(a) & (c) and West Virginia Code § 48-2-401 are unconstitutional in so far as they prohibit sam e-sex m arriage. More over, the Court enjoins Defendant Clerks from enforcing West Virginia Code § 48-2-104(a) & (c) and West Vi rginia Code § 48-2-401 to the extent that these statu tes have be en decla red unconstitu tional. Fin ally, th e Court enjo ins Defendant Clerks from refusing to accept application s and issue m arriage licenses to sam e-sex couples on the same terms as opposite-sex couples under West Virginia Code § 48-2-104(a) & (c) and West Virginia Code § 48-2-401.
IV. Motion to Continue Stay and Calendar Oral Argument and Cross-Motion to Lift Stay and Enter Judgment
The State previously filed a motion requesting that the Court continue its stay on the merits until after the U.S. Court of Appeals forthe Fourth Circuit issued its mandate in Bostic and that the Court schedule oral argum ent on the threshold i ssues in this case. ECF No. 126. Plaintiff’s responded to the State’s motion with a cross-motion to lift the stay and enter judgment. ECF No. 127. This Court sua sponte continued the stay on the m erits pending the Suprem e Court’s decision on the Pe tition f or a W rit of Certio rari in Bostic. ECF No. 130. Accordingly, the State’s motion to continue the stay, and Plaintiffs’ cross-motion to lift the stay and enter judgment,
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are DENIED AS MOOT . Furtherm ore, the Court finds that oral argum ent on the threshold issues in this case is not necessary and would not aid the Courtin rendering its opinion. Thus, the motion to calendar oral argument is DENIED.
V. Motion and Amended Motion to Lift Stay and Enter Judgment Following the Suprem e Court’s decision to deny the Petitio n for a W rit of Certiorari in Bostic, Plaintiffs moved this court to lift the stay and enter judgment. The Court previously lifted the stay (ECF No. 133) and now enters judgment in this case in favor of Plaintiffs. Accordingly, Plaintiffs’ motion is GRANTED.
Conclusion For the reasons state above, Plaintif f’s Motion for Summ ary Judgment (ECF No. 40) is GRANTED. Defendant Vera J. McCorm ick’s Moti on to Dism iss (ECF No. 26), Defendant Karen S. Cole’s Motio n to Dism iss (ECF No. 31), Defendants’ Joint Motion for Summary Judgment (ECF No. 62), the State of West Virginia’s Cross-Motion for Summary Judgment (ECF No. 66), and the State of W est Virginia’s Motion to Dism iss (ECF No. 85) are DENIED. The State of W est Virgin ia’s Motion to Continue Me rits Stay and to Cale ndar Oral Argum ent on Threshold Issues (ECF No. 126) is DENIED in part and DENIED AS MOOT in part . Plaintiff’s Cross-Motion to Lift Stay and Enter Judgment (ECF No. 127) is DENIED AS MOOT. Plaintiff’s Motion and Amended Motion to Lift Stay and Enter Judgment (ECF No. 131, ECF No. 132) are GRANTED. The Court DIRECTS the Clerk to send a copy of this written Opinion and Order to counsel of record and any unrepresented parties.
ENTER: November 7, 2014
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 Case 3:13-cv-24068 Document 125 Filed 06/10/14 Page 1 of 2 PageID #: 4372

HUNTING

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
TON DIVISION

CASIE JO MCGEE and SARAH ELIZABETH ADKINS; JUSTIN MURDOCK and WILLIAM GLAVARIS; and NANCY ELIZABETH MICHAEL and JANE LOUISE FENTON, individually and as next friends of A.S.M., minor child,

Plaintiffs,

v.

CIVIL

KAREN S. COLE, in her official capacity as CABELL COUNTY CLERK; and VERA J. MCCORMICK, in her official capacity as KANAWHA COUNTY CLERK,

Defendants, and

STATE OF WEST VIRGINIA

Intervenor

Defendant.

ACTION NO. 3:13-24068

ORDER The U.S. Court of Appeals for the Fourth Ci rcuit heard o ral argum ent in the cas e of Bostic v. S chaefer, Case No. 14-1167, on May 13, 2014, pursuant to an expedited briefing schedule, in which the plain tiffs challenge Virginia’s constitutional and statutory prohibition of same-sex marriage. Because of the overlap in the issues present in that case and the one before this Court, the Court sua sponte ORDERS that the instant case be STAYED pending a decision from the Fourth Circuit in Bostic v. Schaefer.

Case 3:13-cv-24068 Document 125 Filed 06/10/14 Page 2 of 2 PageID #: 4373 The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented parties. ENTER: June 10, 2014
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 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

CASIE JO MCGEE and SARAH ELIZABETH ADKINS; JUSTIN MURDOCK and WILLIAM GLAVARIS; and NANCY ELIZABETH MICHAEL and JANE LOUISE FENTON, individually and as next friends of A.S.M., minor child,

Plaintiffs,

v.

CIVIL ACTION NO. 3:13-24068

KAREN S. COLE, in her official capacity as CABELL COUNTY CLERK; and VERA J. MCCORMICK, in her official capacity as KANAWHA COUNTY CLERK,

Defendants.

and

STATE OF WEST VIRGINIA

Intervenor Defendant.

MEMORANDUM OPINION AND ORDER Pending before the Court is a motion by Defendant Vera J. McCormick to dismiss the complaint (ECF No. 26), a motion by Defendant Karen S. Cole to dismiss the complaint (ECF No. 31), and a motion by Intervenor Defendant the State of West Virginia to dismiss the complaint (ECF No. 34). Also pending are a motion by Defendant McCormick and Defendant Cole (collectively “Defendant Clerks”) to strike Plaintiffs’ notice of supplemental authority (ECF No. 45) and a motion by Intervenor Defendant the State of West Virginia to amend the deadline to respond to Plaintiffs’ motion for summary judgment (ECF No. 53).

For the reasons stated below, the motion to strike (ECF No. 45) is GRANTED in part; the Court will consider the two exhibits attached to Plaintiffs’ notice of supplemental authority but will not consider legal argument presented in the memorandum accompanying those exhibits. The Court DENIES in part Defendant Clerks’ motions to dismiss (ECF Nos. 26, 31) and RESERVES ruling as to abstention arising from the issue of whether the existing Defendants are sufficient to bind state authorities and all county clerks, should a ruling on the merits be made in favor of Plaintiffs. The Court DIRECTS Plaintiffs, by February 12, 2014, to either 1) seek joinder of whatever additional parties they deem necessary to create greater certainty as to the effect of a ruling in this case, or 2) file a responsive pleading explaining why the existing Defendants in this lawsuit are sufficient to bind state authorities and all county clerks should a ruling on the merits be made in favor of Plaintiffs and why joinder of additional parties is not necessary. Defendants may file a response within seven days of Plaintiffs taking either action, and Plaintiffs may file a reply within three days of any response from Defendants.
The Court GRANTS the State’s motion to dismiss (ECF No. 34) and accordingly DISMISSES Plaintiffs’ claims pertaining to West Virginia Code Section 48-2-603 (the nonrecognition provision); Plaintiffs’ claims as to the other portions of the marriage ban may proceed. However, the Court ORDERS that Plaintiffs may amend their Complaint by February 12, 2014. Lastly, the Court ORDERS that Defendants shall have 14 days from entry of this Memorandum Opinion and Order to file any responses to Plaintiffs’ motion for summary judgment. The Court accordingly DENIES as moot the State’s motion to amend the deadline (ECF No. 53).
I. Statement of Facts
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Plaintiffs in this case seek to overturn West Virginia Code Sections 48-2-104, 48-2-401, and 48-2-603, as well as “any other sources of West Virginia law that exclude same-sex couples from marriage or from recognition of marriages entered into in another jurisdiction” (collectively called the “marriage ban”). Compl. 28, ECF No. 8.
West Virginia Code Section 48-2-104 specifies the required contents for marriage license applications. Among other requirements, “[t]he application for a marriage license must contain a statement of the full names of both the female and the male parties” and “must contain the following statement: ‘Marriage is designed to be a loving and lifelong union between a woman and a man.’” W. Va. Code § 48-2-104(a) & (c). Section 48-2-401 governs persons authorized to perform marriages and states in part, “Celebration or solemnization of a marriage means the performance of the formal act or ceremony by which a man and woman contract marriage and assume the status of husband and wife.” Lastly, Section 48-2-603 prohibits a same-sex marriage performed outside of West Virginia from being recognized as a valid marriage within West Virginia: “A public act, record or judicial proceeding of any other state, territory, possession or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of the other state, territory, possession, or tribe, or a right or claim arising from such relationship, shall not be given effect by this state.”
Six of the plaintiffs are gay and lesbian West Virginians, comprising three same-sex adult couples: Casie Jo McGee and Sarah Elizabeth Adkins; Justin Murdock and William Glavaris; and Nancy Elizabeth Michael and Jane Louise Fenton. The seventh plaintiff, A.S.M., is the minor child of Ms. Michael and Ms. Fenton. Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 against Karen S. Cole, in her official capacity as Cabell County Clerk, and against Vera J. McCormick, in her official capacity as Kanawha County Clerk. Defendant Clerks are responsible
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for issuing marriage licenses and recording marriages that take place in jurisdictions outside of
West Virginia. Their responsibilities include ensuring that marriage licenses and records of out-
of-state marriages conform with West Virginia law, including the West Virginia marriage ban.
Plaintiffs argue that Defendant Clerks are violating Plaintiffs’ due process rights and equal
protection rights guaranteed by the Fourteenth Amendment to the United States Constitution.
Plaintiffs accordingly request that this Court declare the marriage ban to be unconstitutional and
enjoin enforcement of the marriage ban.
The State of West Virginia filed a motion to intervene as a defendant, pursuant to 28 U.S.C. § 2403(b)1 and Federal Rules of Civil Procedure 5.1(c) and 24(a), to defend the
constitutionality of the marriage ban. ECF No. 25. The Court granted this motion, allowing the
State to proceed as an Intervenor Defendant. ECF No. 28.
Defendant Clerks and the State have each filed a separate motion to dismiss. ECF Nos.
26, 31, 34. Plaintiffs have filed a notice of supplemental authority in opposition to Defendant
Clerks’ motions to dismiss. ECF No. 44. Defendant Clerks jointly move for the Court to strike
the notice of supplemental authority. ECF No. 45. All of these motions are now ripe for
resolution and will be addressed in this Memorandum Opinion and Order.
Plaintiffs have also filed a motion for summary judgment. ECF No. 40. Defendant Clerks
and the State jointly moved to stay briefing on Plaintiffs’ motion for summary judgment until
1 This section provides: “In any action, suit, or proceeding in a court of the United States to which a State or any agency, officer, or employee thereof is not a party, wherein the constitutionality of any statute of that State affecting the public interest is drawn in question, the court shall certify such fact to the attorney general of the State, and shall permit the State to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality.”
28 U.S.C. § 2403(b). 4

resolution of the motions to dismiss. ECF No. 43. In an Order dated January 17, 2014, the Court directed that Defendants’ responses to Plaintiffs’ motion for summary judgment would be due seven days after the entry of a Memorandum Opinion and Order resolving the motions to dismiss. ECF No. 52. The State has filed a motion to amend that deadline. ECF No. 53.
In Section II, the Court discusses the motion to strike. Section III examines whether the Court should abstain from exercising jurisdiction over this matter. Section IV discusses whether Plaintiffs have failed to state a claim for relief. Section V analyzes whether Plaintiffs have standing to challenge West Virginia Code Section 48-2-603, the non-recognition statute. Section VI discusses the State’s motion to extend the deadline to respond to Plaintiffs’ motion for summary judgment.
II. Motion to Strike On January 3, 2014, Plaintiffs filed a notice of supplemental authority in opposition to the motions to dismiss filed by Defendant Clerks. ECF No. 44. Plaintiffs attached two recent decisions to this notice that they believe should be considered by the Court in ruling on the motions to dismiss. The first is a decision by the District Court for the District of Utah in Kitchen v. Herbert, holding that Utah’s prohibition on same-sex marriage is unconstitutional. No. 2:13CV-217, 2013 WL 6697874 (D. Utah Dec. 20, 2013). The second is a decision by the District Court for the Southern District of Ohio in Obergefell v. Wymyslo, holding that Ohio must recognize valid same-sex marriages from other states on Ohio death certificates. No. 1:13-CV501, 2013 WL 6726688 (S.D. Ohio Dec. 23, 2013).
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Defendant Clerks filed a joint motion to strike this notice of supplemental authority. ECF No. 45. They argue that pursuant to Local Rule of Civil Procedure 7.1(a)(7),2 Plaintiffs were required to seek leave of the Court before filing this supplemental memorandum, which Plaintiffs did not do. Defendant Clerks argue that, in essence, this filing is an impermissible surreply and that, even had leave to file a surreply been requested, there would be no basis to grant that leave. Defendant Clerks point out that the two cases are outside the Fourth Circuit and rely upon case law that may conflict with Fourth Circuit precedent, making the decisions of limited value here. Furthermore, Defendant Clerks suggest that Plaintiffs did not timely bring these decisions to the Court’s attention. Kitchen v. Herbert was issued three days before Plaintiffs filed a response to Defendant Cole’s motion to dismiss, and Obergefell v. Wymyslo—issued the same day that Plaintiffs filed their response to Defendant Cole’s motion to dismiss—was available for seven days before Defendant Cole filed her reply. Plaintiffs respond that their filing is not a surreply and instead should be treated as a notice of supplemental authority, although the federal rules and local rules do not explicitly allow such a filing.
The Court notes that Plaintiffs filed this notice of supplemental authority 11 and 14 days after the respective decisions were issued, shortly after the Court resumed normal operations following winter holidays. Although Plaintiffs should have sought leave before making this filing, as a practical matter the Court would have read these two cases regardless. For these reasons, the Court allows the exhibits but strikes any legal argument presented in the memorandum accompanying the exhibits. Therefore, the motion to strike is granted in part.
III. Abstention
2 That Rule states in part: “Surreply memoranda shall not be filed except by leave of court. These times for serving memoranda may be modified by the judicial officer to whom the motion is addressed.” L. R. Civ. P. 7.1(a)(7).
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Defendant Clerks have filed separate motions to dismiss, each arguing that the Court should abstain from exercising jurisdiction in this case. As these arguments substantially overlap, the Court will discuss the arguments from both Clerks concerning abstention in this Section.
Abstention can take many forms, including the “Burford abstention doctrine,” which is based on the Supreme Court’s decision in Burford v. Sun Oil Company, 319 U.S. 315 (1943). As explained by the Fourth Circuit, the Burford abstention doctrine provides that “[c]ourts should abstain from deciding cases presenting ‘difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar,’ or whose adjudication in a federal forum ‘would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.’” First Penn-Pac. Life Ins. Co. v. Evans, 304 F.3d 345, 348 (4th Cir. 2002) (emphasis added) (quoting New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 361 (1989) (“NOPSI”)). If either one of these two prongs is met, the Court should abstain from exercising jurisdiction in this case. Notably, “abstention is . . . ‘the exception, not the rule.’” Id. (quoting Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 813 (1976)). Many considerations factor into determining whether Burford abstention is appropriate in a given case:
[W]hether the constitutional challenge is of minimal federal importance, involving only whether a state commission had properly applied the state’s own regulations; the “intricacy” and importance of the state’s regulatory scheme; whether the state had created a centralized system of judicial review, which permitted state courts to develop expertise in interpreting the scheme and the industry; the speed and adequacy of state court review; and the likelihood of “[d]elay, misunderstanding of local law, and needless federal conflict with the state policy.” Goodhart v. Bd. of Visitors of Univ. of Va., 451 F. Supp. 2d 804, 807-08 (W.D. Va. 2006) (footnote omitted) (quoting NOPSI, 491 U.S. at 360).
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In this Section, the Court will first discuss whether this case presents “difficult questions
of state law.” Then the Court will turn to whether adjudication here “would be disruptive of state
efforts to establish a coherent policy.” Lastly, the Court will analyze the effect that Baker v.
Nelson, 409 U.S. 810 (1972), has on the issue of abstention, if any effect at all.
A. Whether the case involves “difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar”
The Supreme Court discussed Burford abstention at length in Ankenbrandt v. Richards,
504 U.S. 689 (1992). In that case, a mother acting on behalf of her daughters brought a tort
action against the father of her children and the father’s girlfriend for child abuse. The Supreme
Court examined whether the federal court should abstain from exercising jurisdiction over the
case, which was in federal court solely based on diversity jurisdiction. In examining this issue,
the Court found that there was a “domestic relations exception” to federal jurisdiction but
construed this exception very narrowly. The Court held that “the domestic relations exception
. . . divests the federal courts of power to issue divorce, alimony, and child custody decrees.” Id.
at 703. However, cases seeking issuance of a decree were distinguished from cases seeking
enforcement of a decree. See id. at 693-94. The Court explained the rationale behind the
exception:
Issuance of decrees of this type not infrequently involves retention of jurisdiction by the court and deployment of social workers to monitor compliance. As a matter of judicial economy, state courts are more eminently suited to work of this type than are federal courts, which lack the close association with state and local government organizations dedicated to handling issues that arise out of conflicts over divorce, alimony, and child custody decrees. Moreover, as a matter of judicial expertise, it makes far more sense to retain the rule that federal courts lack power to issue these types of decrees because of the special proficiency developed by state tribunals over the past century and a half in handling issues that arise in the granting of such decrees.
Id. at 703-04.
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The Court also acknowledged that Burford abstention “might be relevant in a case involving elements of the domestic relationship even when the parties do not seek divorce, alimony, or child custody.” Id. at 705. The Court explained:
This would be so when a case presents difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar. Such might well be the case if a federal suit were filed prior to effectuation of a divorce, alimony, or child custody decree, and the suit depended on a determination of the status of the parties. Id. at 705-06 (citation omitted) (internal quotation marks omitted). Applying that logic to the case before it, the Court declined to abstain because “the status of the domestic relationship has been determined as a matter of state law, and in any event has no bearing on the underlying torts alleged.” Id. at 706 (footnote omitted). Defendant Clerks point to Ankenbrandt to support their argument that the case presents “difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar,” First Penn-Pac., 304 F.3d at 348, thus making abstention appropriate. They argue that the Supreme Court’s statement that Burford abstention “might be relevant in a case involving elements of the domestic relationship even when the parties do not seek divorce, alimony, or child custody,” Ankenbrandt, 504 U.S. at 705, supports abstention in the instant case. The Court believes that this reading of the domestic relations exception is too expansive. The example given in Ankenbrandt of a case involving “difficult questions of state law” is a “suit depend[ing] on a determination of the status of the parties.” Id. at 706. This indicates that abstention would be appropriate when disposition of the federal case depends on a state court’s decision about how state domestic relations law should be interpreted and applied. The instant case, however, does not present such a situation. Like in Ankenbrandt, here “the status of the domestic relationship has [already] been determined as a
9

matter of state law,” id.,—namely, state law has made it clear that same-sex marriages cannot be entered into or recorded in West Virginia.
This conclusion is also supported by Zablocki v. Redhail, 434 U.S. 374 (1978), where the plaintiffs challenged a Wisconsin statute prohibiting residents with child support obligations from marrying without first obtaining a court order granting permission to marry. In finding abstention inappropriate, the Supreme Court noted that there were “no ambiguities in the statute for the state courts to resolve.” Id. at 379 n.5.3 Like the statute in Zablocki, West Virginia’s marriage ban is not ambiguous as to its prohibition of same-sex marriages. This case accordingly does not present “difficult questions of state law.” Defendant Cole argues that the case at hand presents more complex issues than Zablocki, in part because Plaintiffs are attempting to redefine marriage. This argument misses the point, however, that the marriage ban is unambiguous and clear as to its impact on couples; that lack of ambiguity—and not the complexity of the case overall—is the relevant inquiry for determining whether the case presents a difficult question of state law. See also Colo. River, 424 U.S. at 815 (finding abstention inappropriate because “[w]hile state claims are involved in the case, the state law to be applied appears to be settled. No questions bearing on state policy are presented for decision.”).
Fourth Circuit precedent further supports the finding that this case does not involve difficult questions of state law. In Johnson v. Collins Entertainment Company, 199 F.3d 710 (4th Cir. 1999), the Fourth Circuit found that the district court below should have abstained pursuant to Burford from exercising jurisdiction over a case alleging violations of South Carolina law and of the Racketeer Influenced Corrupt Organizations (“RICO”) Act. In so finding, the Fourth Circuit noted that the parties contested the meaning of state gambling law and that the district
3 The fact that the Court was not specifically discussing Burford abstention does not change the relevance of this point.
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court “was necessarily trying to predict how the South Carolina Supreme Court would decide” that meaning. Id. at 720. Even though the plaintiffs also claimed RICO violations, the “[p]laintiffs’ claims depend[ed] ultimately on alleged violations of state law for their predicate acts.” Id. at 722. The Fourth Circuit came to the opposite conclusion in Martin v. Stewart, 499 F.3d 360 (4th Cir. 2007), finding that abstention was not appropriate in a case challenging South Carolina gambling law based on the Fourteenth Amendment’s Due Process and Equal Protection Clauses. The Fourth Circuit found that interpretation of the statutes at that time did not present difficult questions of state law. For example, in regards to the claim that a certain statute was unconstitutionally vague, the Fourth Circuit noted:
[T]he state law component of a vagueness challenge—whether limiting constructions apply to the language—is settled: the State’s highest court has expressly held that the statutory text is to be given its ordinary meaning. The remaining question—whether the statute’s ordinary meaning is unconstitutionally vague—is a matter of federal law. Thus, because state law is now “clear and certain,” Burford abstention is inappropriate. Id. at 366 (citation omitted). The Court finds that the instant case is more analogous to Martin than Johnson. Here, the interpretation of the West Virginia marriage ban is clear as an issue of state law; the only remaining issue is whether the ban violates federal law. In summary, this case does not present difficult questions of state law, and therefore fails to satisfy the first possible ground for Burford abstention. Next, the Court turns to whether this case instead satisfies the second possible ground for abstention under Burford.
B. Whether “adjudication in a federal forum would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern” Under the second ground for abstention in Burford, this Court should abstain from
exercising jurisdiction in this case if the case’s “adjudication in a federal forum ‘would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.’” First Penn-Pac., 304 F.3d at 348. Although common sense indicates that
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defining marriage is a matter of substantial public concern, it is a closer question whether this Court’s adjudication of the case would be disruptive of state efforts to establish a coherent policy. In Zablocki, the Supreme Court found that the Minnesota statute—unambiguous on its face as to who had to obtain a court order before marrying—“does not involve complex issues of state law, resolution of which would be ‘disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.’” Zablocki, 434 U.S. at 379 n.5 (quoting Colo. River, 424 U.S. at 814-15). Furthermore, the Supreme Court noted that “there is, of course, no doctrine requiring abstention merely because resolution of a federal question may result in the overturning of a state policy.” Id.; see also Martin, 499 F.3d at 367 (citing Zablocki and other cases for this proposition).
Defendant Clerks point to state legislative efforts over the past decade or so concerning same-sex marriage as evidence of “state efforts to establish a coherent policy,” including a House of Delegates bill allowing civil unions between same-sex couples and a Senate joint resolution proposing a state constitutional amendment that would prohibit same-sex marriage. They argue that the state legislature—as the elected representatives of the citizens of West Virginia—should be given the opportunity to continue these efforts in the next legislative session. Defendants point to no cases, however, suggesting that legislative efforts to define domestic relations justify federal court abstention, and the Court has not found any. Additionally—although this point is more relevant for Younger abstention rather than Burford abstention—, there are no pending state court cases in West Virginia on the issue of same-sex marriage.
Defendant McCormick points out that if the marriage ban is struck down, only clerks in Kanawka and Cabell Counties will be impacted, resulting in confusion and the lack of a uniform
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policy regarding same-sex marriages across West Virginia. Although it may be true that a state court trial-level case striking down the marriage ban would result in no less confusion and lack of uniformity, the Court is nonetheless troubled with how resolution of this case could create disjointed policy across West Virginia. Review of other cases has illustrated this concern. In Zablocki, for example, the plaintiffs brought suit against the County Clerk of Milwaukee County, individually and as representative of a class consisting of all county clerks in Wisconsin. Also, in Martin v. Stewart—challenging South Carolina gambling law—suit was brought against the Chief of the State Law Enforcement Division, the Attorney General, and the Solicitor of the Ninth Judicial Circuit. The Fourth Circuit noted that the claims did not “threaten a state interest in uniform regulation” because the plaintiff “launche[d] a facial attack on the state statutes as a whole—precisely the sort of case federal courts often and expertly entertain.” 499 F.3d at 367 (emphasis in original). In Martin, there was certainty as to the result if the statutes at issue were ruled unconstitutional because the defendants collectively were deemed to represent the entire authority of the State of South Carolina. In Kitchen v. Herbert—striking down the prohibition of same-sex marriage found in Utah’s Constitution—, the plaintiffs filed suit against the Governor of Utah, the Attorney General, and the Salt Lake County Clerk.
In contrast, however, the Court is not certain that the parties before it in the instant case are sufficient to bind all clerks and state officials in West Virginia should the marriage ban be struck down. Specifically, while it is generally true that “the intervenor is treated as if the intervenor were an original party and has equal standing with the original parties,” 7C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1920 (3d ed.) (footnote omitted), the Court is concerned as to whether the State’s inclusion as an Intervenor Defendant— represented by the Attorney General—is sufficient to support jurisdiction and create certainty as
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to this case’s effect on all clerks across West Virginia’s two federal districts. The Court notes that the parties presented relatively little argument on this point. While this concern in creating a coherent policy is sufficient ground for abstention, the Court declines to so rule at this time. Instead, the Court reserves its determination of this factor in the abstention analysis. The Court directs Plaintiffs, by February 12, 2014, to either 1) seek joinder of whatever additional parties they deem necessary to create greater certainty as to the effect of a ruling in this case, or 2) file a responsive pleading explaining why the existing Defendants in this lawsuit are sufficient to bind state authorities and all county clerks should a ruling on the merits be made in favor of Plaintiffs and why joinder of additional parties is not necessary. Defendants may file a response within seven days of Plaintiffs taking either action, and Plaintiffs may file a reply within three days of any response from Defendants.
C. Effect of Baker v. Nelson Defendant McCormick also argues that abstention is proper pursuant to Baker v. Nelson,
409 U.S. 810 (1972). That case was an appeal from a decision of the Supreme Court of Minnesota, which held below that 1) although a Minnesota statute defining marriage did not expressly prohibit same-sex marriage, neither did that statute authorize same-sex marriage, and 2) the statute did not violate the Fourteenth Amendment to the United States Constitution. Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971). On appeal, the Supreme Court of the United States simply stated, “The appeal is dismissed for want of a substantial federal question.” 409 U.S. at 810. Defendant McCormick argues that, because the U.S. Supreme Court found a substantial federal question lacking in Baker, this Court should likewise decline to exercise jurisdiction.
This Court must determine to what degree it is bound by the Baker decision. As explained by the Supreme Court in a subsequent case:
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Because a summary affirmance is an affirmance of the judgment only, the rationale of the affirmance may not be gleaned solely from the opinion below.
“When we summarily affirm, without opinion, . . . we affirm the judgment but not necessarily the reasoning by which it was reached. . . .” (Footnote omitted.) Fusari v. Steinberg, 419 U.S. 379, 391-392, 95 S.Ct. 533, 541, 42 L.Ed.2d 521 (1975) (Burger, C. J., concurring).
Summary affirmances and dismissals for want of a substantial federal question without doubt reject the specific challenges presented in the statement of jurisdiction and do leave undisturbed the judgment appealed from. They do prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions.
Mandel v. Bradley, 432 U.S. 173, 176 (1977). Although summary affirmance of a specific
question is binding on lower courts as a general rule, there are circumstances where that
summary affirmance is no longer binding. For example, “[t]he precedential significance of the
summary action . . . is to be assessed in the light of all of the facts in that case,” with special
attention paid to whether “those facts are very different from the facts of [the pending] case.” Id.
at 177.
In Hicks v. Miranda, 422 U.S. 332 (1975), the Supreme Court discussed other
circumstances where a summary decision is no longer binding. The Supreme Court in Hicks
found that the district court below erroneously disregarded the Supreme Court’s summary
decision from another case. In so finding, the Supreme Court noted:
The District Court should have followed the Second Circuit’s advice, first, in Port Authority Bondholders Protective Committee v. Port of New York Authority, 387 F.2d 259, 263 n. 3 (1967), that [“]unless and until the Supreme Court should instruct otherwise, inferior federal courts had best adhere to the view that if the Court has branded a question as unsubstantial, it remains so except when doctrinal developments indicate otherwise[”] and, later, in Doe v. Hodgson, 478 F.2d 537, 539, cert. denied, sub nom. Doe v. Brennan, 414 U.S. 1096, 94 S. Ct. 732, 38 L.Ed.2d 555 (1973), that the lower courts are bound by summary decisions by this Court “until such time as the Court informs (them) that (they) are not.”
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Hicks, 422 U.S. at 344-45.4 The Court acknowledges that the questions presented by Baker and the instant case are
similar in some regards. Both are challenging the constitutionality of a state statute which prohibits same-sex marriage. Both challenge the state statutes on the grounds of due process and equal protection. And the decision of the Supreme Court of Minnesota indeed appears to rest on a finding that the statute presents neither a due process violation nor an equal protection violation. See Baker, 191 N.W.2d at 187 (“The equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state’s classification of persons authorized to marry.”). Plaintiffs argue, however, that vital differences between the cases mean that Baker is not binding precedent. For example, the instant case includes claims on behalf of a minor child of the one of the couples. The instant case alleges discrimination based on sexual orientation, sex, and parental status. Baker, however, appeared to rest solely on analysis of discrimination based on sex. Id. (“[I]n commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.”). However, as explained by the Second Circuit, the precise issue presented and decided in Baker was “whether same-sex marriage may be constitutionally restricted by the states.” Windsor v. United States, 699 F.3d 169, 178 (2d Cir. 2012), aff’d, 133 S. Ct. 2675 (U.S. 2013). That is the same issue presented here. Therefore, at this time, the Court declines to find that differences in the facts of each case or the issues presented warrant nonapplication of Baker to this case.
4 The fact that this doctrinal developments exception comes from the Second Circuit does not suggest that it is limited to cases involving application of Second Circuit law. After all, the Supreme Court applied that exception in Hicks, which was an appeal from a district court within the Ninth Circuit.
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Doctrinal developments since Baker, however, do justify a finding that Baker is nonbinding. As noted by the Second Circuit in Windsor v. United States, “[e]ven if Baker might have had resonance . . . in 1971, it does not today.” 699 F.3d at 178. In Windsor, the Second Circuit found that Baker did not foreclose jurisdiction over review of the federal Defense of Marriage Act (“DOMA”). Citing Hicks’s discussion of doctrinal developments, the Second Circuit found that doctrinal developments in the Supreme Court’s equal protection jurisprudence foreclosed the application of Baker. Those developments included: the creation of the term “intermediate scrutiny” in Craig v. Boren, 429 U.S. 190, 218 (1976) (Rhenquist, J., dissenting); the treatment of classifications based on sex and illegitimacy as quasi-suspect, as seen in Lalli v. Lalli, 439 U.S. 259, 264-65 (1978); and the Supreme Court ruling there was no rational basis for “a classification of [homosexuals] undertaken for its own sake,” as explained in Romer v. Evans, 517 U.S. 620, 635 (1996). Windsor, 699 F.3d at 178-79.5
In Kitchen v. Herbert, the District Court for the District of Utah likewise found that “the [Supreme] Court’s summary dismissal in Baker has little if any precedential effect today” in light of doctrinal developments in equal protection and due process jurisprudence. 2013 WL 6697874, at *8. Furthermore, the district court found that the Supreme Court’s decision in Windsor represented yet another “significant doctrinal development,” as “the Windsor Court foresaw that its ruling would precede a number of lawsuits in state and lower federal courts raising the question of a state’s ability to prohibit same-sex marriage, a fact that was noted by two dissenting justices”—Justices Roberts and Scalia. Id. In Bishop v. United States, the District Court for the Northern District of Oklahoma reached a similar conclusion about doctrinal
5 The Supreme Court’s affirmance of the Second Circuit’s decision in Windsor did not discuss Baker, but neither did it critique the Second Circuit’s analysis of Baker’s applicability. United States v. Windsor, 133 S. Ct. 2675 (U.S. 2013).
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developments since Baker and about the effect of the Supreme Court’s Windsor decision. No. 04-CV-848-TCK-TLW at *32-34 (N.D. Okla. Jan. 14, 2014) (in regards to the latter point, explaining that “statements made by the [Supreme Court] Justices [in Windsor] indicate that lower courts should be applying Windsor (and not Baker) to the logical ‘next issue’ of state prohibitions of same-sex marriage. . . . If Baker is binding, lower courts would have no reason to apply or distinguish Windsor, and all this judicial hand-wringing over how lower courts should apply Windsor would be superfluous.”). Although not binding on this Court, the reasoning in these cases is persuasive, and the Court need not repeat their full discussion of these issues here.
Kitchen acknowledges that some federal courts have recently treated Baker as controlling precedent. For example, the First Circuit found Baker to be binding precedent because it had not yet been repudiated by the Supreme Court. Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1, 8 (1st Cir. 2012), cert. denied, 133 S. Ct. 2884 (U.S. 2013) and 133 S. Ct. 2887 (U.S. 2013). However, the First Circuit did not even discuss the doctrinal developments exception. The District Court for the District of Nevada also found Baker controlling, seeming to suggest that even if doctrinal developments had occurred since a case was handed down, that case was nonetheless binding until the Supreme Court stated otherwise. Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1002 (D. Nev. 2012).6 Both cases preceded the Supreme Court’s decision in Windsor, a decision which, as explained above, showed additional doctrinal development in relevant jurisprudence. The Court disagrees with the analysis of doctrinal developments conducted in those two cases and accordingly finds that Baker is not binding on the current case and does not justify abstention here.
6 However, the district court acknowledged that “the present equal protection claim is precluded by Baker insofar as the claim does not rely on the Romer line of cases, and Defendants are entitled to dismissal in part, accordingly.” Id. at 1003. The court, in essence, treated Romer as a new doctrinal development.
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In summary, the Court reserves ruling on the issue of whether the existing Defendants are sufficient to bind state authorities and all county clerks should a ruling on the merits be made in favor of Plaintiffs. In all other regards, Defendant Clerks’ arguments regarding abstention are rejected.
IV. Failure to State a Claim Defendant McCormick argues very briefly in her motion to dismiss that Plaintiffs’ Complaint should be dismissed for failure to state a claim upon which relief may be granted. She argues that because there is no controlling case law that invalidates West Virginia’s marriage ban, Plaintiffs have failed to sufficiently plead a claim for relief. The Court rejects this argument. There is no requirement that a court with controlling jurisdiction have already invalidated a state’s same-sex marriage ban in order for a plaintiff to have sufficiently pled that a state’s marriage ban is unconstitutional. Defendant McCormick’s cursory suggestion that the state ban is rationally related to a legitimate government interest and is presumptively constitutional may be a valid defense, but it does not render Plaintiffs’ claims insufficient as a matter of law. Plaintiffs have met their burden at this stage. Defendant Clerks have reserved the right to file subsequent motions to dismiss addressing other grounds for dismissal. Thus, the Court at this time declines to dismiss the case for failure to state a claim.
V. Standing to Challenge the Non-Recognition Statute The State of West Virginia has also filed a motion to dismiss, arguing that Plaintiffs do not have standing to challenge the constitutionality of West Virginia’s marriage non-recognition statute, found at West Virginia Code Section 48-2-603.7 State’s Mot. Dismiss, ECF No. 34.8
7 As discussed above, this section prohibits a same-sex marriage performed outside of West Virginia from being recognized as a valid marriage within West Virginia:
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Because Plaintiffs lack standing, Defendant argues, the Court does not have subject-matter
jurisdiction with regard to the claims under Section 48-2-603 and should therefore dismiss those
claims.
Standing requires that the following three elements be met: 1) “the plaintiff must have
suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and
particularized and (b) actual or imminent, not conjectural or hypothetical;” 2) “there must be a
causal connection between the injury and the conduct complained of—the injury has to be fairly
. . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the
independent action of some third party not before the court;” and 3) “it must be likely, as
opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (alternation in original) (footnote omitted)
(citations omitted) (internal quotation marks omitted). In regard to the first prong, the Supreme
Court has explained that “[b]y particularized, [it] mean[s] that the injury must affect the plaintiff in a personal and individual way.” Id. at 560 n.1.
Defendant argues that Plaintiffs have not pled an injury that results from the operation of
Section 48-2-603. Plaintiff couples clearly allege a desire to get married in West Virginia and
that they are legally qualified to do so if not for the fact they each couple is same-sex. Compl. ¶
“A public act, record or judicial proceeding of any other state, territory, possession or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of the other state, territory, possession, or tribe, or a right or claim arising from such relationship, shall not be given effect by this state.” W. Va. Code § 48-2-603. 8 This argument is the only one raised in the State’s Motion to Dismiss. The State does not otherwise join in the grounds for dismissal discussed in the other two motions to dismiss. Neither does the State claim that Plaintiffs lack standing to challenge the other components of the West Virginia marriage ban.
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21 (“But for the fact that they are of the same sex, each Plaintiff couple is legally qualified to marry under the laws of West Virginia and wishes to marry in the State.”). The Complaint also states that each couple attempted to obtain a marriage license in West Virginia but that their requests were denied. Id. ¶¶ 22, 23, 24. However, Defendant argues that allegations regarding marriage outside of West Virginia are missing from the Complaint:
Plaintiffs do not allege that they have valid marriages from other jurisdictions, that they have taken any steps to obtain valid marriages from other jurisdictions, that they intend to be married in other jurisdictions, or that they would have obtained a valid marriage from another jurisdiction if West Virginia recognized out-of-state same-sex marriages. Indeed, they do not even allege that they meet the qualifications to be married in any other jurisdiction. State’s Mot. Dismiss 5. In reviewing the Complaint, the Court is led to the same conclusion. Plaintiffs do not allege an intent or desire to marry elsewhere if that marriage would be recognized in West Virginia. Neither do they allege that they legally are qualified to do so. The closest that the Complaint comes to such an allegation is the statement that “the adult Plaintiffs and other samesex couples . . . are also denied the ability to have a valid marriage from another jurisdiction recorded or recognized in West Virginia.” Compl. ¶ 26. Attached to Plaintiffs’ response to the State’s motion to dismiss are declarations from the adult Plaintiffs, some of whom explain that they would marry in another state if they knew that West Virginia would recognize that out-of-state marriage. See, e.g., Decl. Casie McGee ¶ 15, ECF No. 39-1 (“[W]e would marry in another state if we thought we could have our marriage respected and recognized here at home [in West Virginia].”). The Court must determine whether it can consider these declarations for purposes of ruling on the State’s motion to dismiss. The Supreme Court has explained in which situations additional evidence can be considered on a challenge to subject-matter jurisdiction:
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[A] defendant may challenge subject matter jurisdiction in one of two ways. See Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). First, the defendant may contend “that a complaint simply fails to allege facts upon which subject matter jurisdiction can be based.” Id. When a defendant makes a facial challenge to subject matter jurisdiction, “the plaintiff, in effect, is afforded the same procedural protection as he would receive under a Rule 12(b)(6) consideration.” Id. In that situation, the facts alleged in the complaint are taken as true, and the motion must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction.
In the alternative, the defendant can contend . . . “that the jurisdictional allegations of the complaint [are] not true.” Adams, 697 F.2d at 1219. The plaintiff in this latter situation is afforded less procedural protection: If the defendant challenges the factual predicate of subject matter jurisdiction, “[a] trial court may then go beyond the allegations of the complaint and in an evidentiary hearing determine if there are facts to support the jurisdictional allegations,” without converting the motion to a summary judgment proceeding. Id. (emphasis added). In that situation, the presumption of truthfulness normally accorded a complaint’s allegations does not apply, and the district court is entitled to decide disputed issues of fact with respect to subject matter jurisdiction.
Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (emphasis in original).
Defendant is not arguing that Plaintiffs’ allegations in the Complaint are not true. Rather,
Defendant argues that Plaintiffs have not sufficiently alleged an injury caused by Section 48-2-
603. Therefore, Defendant’s attack falls into the first sort of challenge noted above. Accordingly,
while the allegations in the Complaint will be taken as true, the declarations attached to
Plaintiffs’ response will not be considered at this point. The Court will only rely on the
allegations in the Complaint when deciding the State’s motion to dismiss.
Having determined what evidence will be considered, the Court now examines whether
standing is met here. The Ninth Circuit addressed the issue of standing in Smelt v. County of
Orange, 447 F.3d 673 (9th Cir. 2006). In that case, a California same-sex couple challenged
Section 2 of DOMA, under which no state was required to recognize any same-sex marriage
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entered into in another state.9 The Ninth Circuit found that the couple lacked standing because
“[n]o state has determined that Smelt and Hammer are married.” Id. at 683. It elaborated that
“[w]ere they to change their residence to Massachusetts [the only state at that time which
allowed same-sex marriage], their situation might change, but they have placed nothing before us
to suggest that they have gone, or intend to go, to that state.” Id. (footnote omitted). Therefore,
“while Section 2 may affect someone who has been declared married in some state, Smelt and
Hammer do not come within that category of people.” Id.; see also Walker v. Barbour, No.
CIV.A. 3:08CV96TSLJC, 2009 WL 691972, at *2 (S.D. Miss. Mar. 12, 2009) (finding no
standing to challenge Section 2 of DOMA for same reason).
Plaintiffs’ attempts to re-cast the reasoning of Smelt are unpersuasive. They argue that the
couple in Smelt lacked standing because marriage for that couple was an impossibility unless
they moved to Massachusetts. The Court disagrees. The Ninth Circuit made it clear that the
couple lacked standing because they neither were married nor alleged an intent to marry
elsewhere. Plaintiffs point out that Section 2 of DOMA was permissive—simply providing that a
state could not be forced to recognize same-sex marriages—but that point does not change Smelt’s parallel to the instant case.10
9 Section 2 of DOMA states: “No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”
28 U.S.C. § 1738C. 10 The Court relies on Smelt solely for the Ninth Circuit’s discussion that standing was lacking because the plaintiffs were not married in another state nor pled their intent to marry in another state. The Court is not adopting the reasoning found in other portions of the opinion.
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Plaintiffs argue that they are not required to marry outside of West Virginia and then seek to have that marriage recognized in West Virginia in order to have standing because those efforts would be futile. It is clear that were Plaintiffs to attempt to have an out-of-state marriage recognized in West Virginia, that request would be denied, and Defendants do not argue otherwise. The Supreme Court discussed futility in MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007), noting that the touchstone for determining whether a threatened plaintiff has standing to challenge actions by the government or private parties—without first exposing himself or herself to liability by engaging in certain behavior—is coercion. For example:
[W]here threatened action by government is concerned, we do not require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat—for example, the constitutionality of a law threatened to be enforced. The plaintiff’s own action (or inaction) in failing to violate the law eliminates the imminent threat of prosecution, but nonetheless does not eliminate Article III jurisdiction. Id. at 128-29 (emphasis in original). In other words, where “the plaintiff had eliminated the imminent threat of harm by simply not doing what he claimed the right to do . . . [t]hat did not preclude subject-matter jurisdiction because the threat-eliminating behavior was effectively coerced.” Id. at 129. Thus, a court will not require a plaintiff to engage in behavior that could risk criminal sanctions or great personal or business loss before challenging the constitutionality of a statute or the legality of certain actions. Id. at 134 (“The rule that a plaintiff must destroy a large building, bet the farm, or (as here) risk treble damages and the loss of 80 percent of its business before seeking a declaration of its actively contested legal rights finds no support in Article III.” (footnote omitted)). Plaintiffs cite this case in support of their futility argument, but the Court does not find MedImmune to be supportive. Here, Plaintiffs do not risk criminal sanctions or personal ruination if they are married in another state and then seek to have that marriage recognized here.
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Although obtaining an out-of-state marriage will entail some time and personal cost and a West Virginia clerk’s refusal to recognize the marriage may result in embarrassment, sadness, or anger, these are not the sorts of risks that suggest that Plaintiffs are “coerced” into not seeking a marriage out-of-state.
The Supreme Court also discussed the issue of futility in Babbitt v. United Farm Workers National Union, where a farmworkers’ union sought to challenge Arizona’s statutory procedures for agricultural workers to elect bargaining representatives, arguing “that the statutory election procedures frustrate rather than facilitate democratic selection of bargaining representatives.” 442 U.S. 289, 300 (1979). Although the union “declined to pursue those procedures [before filing suit] . . . due to the procedures’ asserted futility,” the Supreme Court nonetheless found that the union had standing to challenge the procedures. Id. The Court noted that the union “has in the past sought to represent Arizona farmworkers and has asserted in its complaint a desire to organize such workers and to represent them in collective bargaining.” Id. This indicates that the standing analysis rested at least in part on the union’s pleading in the complaint of a desire to engage in election activities should the barriers creating futility be eliminated.
Plaintiffs also point to the Supreme Court’s discrimination jurisprudence. In employment discrimination cases, for example, a plaintiff is not necessarily required to actually apply for a job with a discriminatory employer in order to recover for discrimination because “[w]hen a person’s desire for a job is not translated into a formal application solely because of his unwillingness to engage in a futile gesture he is as much a victim of discrimination as is he who goes through the motions of submitting an application.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 365-66 (1977). However, “[b]ecause he is necessarily claiming that he was deterred from applying for the job by the employer’s discriminatory practices, his is the not
25

always easy burden of proving that he would have applied for the job had it not been for those practices.” Id. at 367-68.
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. Just as a plaintiff alleging employment discrimination must allege that he or she would have applied for the job but for the discrimination, and just as a union must allege that it would invoke electoral procedures were those procedures not ineffective, so too must Plaintiffs here allege that they would indeed get married in another state but for the fact that West Virginia does not recognize those out-of-state same-sex marriages. Plaintiffs have failed to so allege. Therefore, the Court finds that Plaintiffs lack constitutional standing to challenge West Virginia Code Section 48-2-603.
Having found that standing is lacking, the Court need not reach the State’s arguments about prudential standing. However, it is necessary to address a few other arguments that Plaintiffs bring up in support of their alleged standing. Plaintiffs argue that allowing them to only challenge the statute prohibiting in-state same-sex marriages—but not the non-recognition statute—would subject same-sex couples to an impermissible burden should the Court in fact strike down the in-state same-sex marriage ban. In that situation, it may be that if Plaintiffs wanted to be recognized as married in West Virginia, they would have to be married in the state itself rather than alternatively going outside of the state and then having the marriage recorded here—a burden which different-sex couples do not face. Plaintiffs point to no authority, and the Court has not found any, showing that this argument confers standing which otherwise would not lie, however. Plaintiffs also argue that if the non-recognition statute stands while the other components of the marriage ban are struck down, they will constantly be forced to provide proof
26

that they were married within the state, as opposed to another state, in order to have their marriage given its due respect within West Virginia. However, this injury is too conjectural and speculative to create an injury. There is no evidence that somebody inquiring into Plaintiffs’ marital status—for example, a hospital administrator inquiring into spousal health insurance coverage—would actually ask for this proof.
Additionally, Plaintiffs argue that their claims as to the non-recognition statute should continue because all of the statutes comprising the marriage ban together harm Plaintiffs’ dignitary interests. This point is not sufficient to confer standing where it is otherwise lacking. Lastly, Plaintiffs argue that the statutes comprising the marriage ban were all passed with the same discriminatory animus and therefore the entire marriage ban must proceed to adjudication on the merits. This consideration, however, does not factor into the standing analysis. Furthermore, even if the non-recognition statute remained in place, it would not prevent Plaintiffs from receiving relief with regards to the other portions of the West Virginia marriage ban—namely, if the other portions of the marriage ban were struck down, Plaintiffs would be able to get married in West Virginia even if the non-recognition statute remained.
The Court acknowledges that it would be preferable to adjudicate the constitutionality of the entire same-sex marriage ban in one case as opposed to two, in terms of efficiency and because of the overlap in the analysis that would surely occur. Those considerations, however, do not excuse Plaintiffs from the requirement to demonstrate standing. Accordingly, the Court grants the State of West Virginia’s motion to dismiss, and dismisses from the case all claims that relate to West Virginia Code Section 48-2-603. Plaintiffs may proceed in challenging other portions of the marriage ban.11
11 The Court clarifies that this dismissal is without prejudice. Should Plaintiffs desire to amend 27

VI. Motion to Amend Deadline In an Order dated January 17, 2014, the Court directed that Defendants’ responses to Plaintiffs’ motion for summary judgment would be due seven days after the entry of a Memorandum Opinion and Order resolving the motions to dismiss. ECF No. 52. The State has filed a motion to amend that deadline, asking that all Defendants have until February 7, 2014, or seven days after resolution of the motions to dismiss, whichever is later, to respond to Plaintiffs’ motion for summary judgment. ECF No. 53. The State noted that Plaintiffs would not agree to this amendment unless Defendants entered into a compressed schedule for remaining filings. Although Plaintiffs have the opportunity to amend the Complaint and/or join additional parties as outlined in this Memorandum Opinion and Order, the Court is inclined to nonetheless allow briefing to proceed regarding Plaintiffs’ motion for summary judgment. For reasons appearing to the Court, the Court directs that Defendants shall have 14 days from entry of this Memorandum Opinion and Order to file any responses to Plaintiffs’ motion for summary judgment. The State’s motion to amend the deadline is accordingly denied as moot. At the same time, however, the Court notes that short extensions like that requested by the State are routinely granted, as they do not create unnecessary or extraordinary delay. All parties are advised to be mindful of professional courtesy should requests for extensions arise in the future.
VII. Conclusion For the reasons stated above, the motion to strike (ECF No. 45) is GRANTED in part; the Court will consider the two exhibits attached to Plaintiffs’ notice of supplemental authority but will not consider legal argument presented in the memorandum accompanying those exhibits. The Court DENIES in part Defendant Clerks’ motions to dismiss (ECF Nos. 26, 31) and
the Complaint to reassert their claims regarding the non-recognition statute, they must do so by the same date outlined in the discussion of abstention, that is, by February 12, 2014.
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RESERVES ruling as to abstention arising from the issue of whether the existing Defendants are sufficient to bind state authorities and all county clerks, should a ruling on the merits be made in favor of Plaintiffs. The Court DIRECTS Plaintiffs, by February 12, 2014, to either 1) seek joinder of whatever additional parties they deem necessary to create greater certainty as to the effect of a ruling in this case, or 2) file a responsive pleading explaining why the existing Defendants in this lawsuit are sufficient to bind state authorities and all county clerks should a ruling on the merits be made in favor of Plaintiffs and why joinder of additional parties is not necessary. Defendants may file a response within seven days of Plaintiffs taking either action, and Plaintiffs may file a reply within three days of any response from Defendants.
The Court GRANTS the State’s motion to dismiss (ECF No. 34) and accordingly DISMISSES Plaintiffs’ claims pertaining to West Virginia Code Section 48-2-603 (the nonrecognition provision); Plaintiffs’ claims as to the other portions of the marriage ban may proceed. However, the Court ORDERS that Plaintiffs may amend their Complaint by February 12, 2014. Lastly, the Court ORDERS that Defendants shall have 14 days from entry of this Memorandum Opinion and Order to file any responses to Plaintiffs’ motion for summary judgment. The Court accordingly DENIES as moot the State’s motion to amend the deadline (ECF No. 53).
Court DIRECTS the Clerk to send a copy of this written Opinion and Order to counsel of record and any unrepresented parties.
ENTER: January 29, 2014
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 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

CASIE JO MCGEE and SARAH ELIZABETH ADKINS; JUSTIN MURDOCK and WILLIAM GLAVARIS; and NANCY ELIZABETH MICHAEL and JANE LOUISE FENTON, individually and as next friends of A.S.M., minor child,

Plaintiffs,

v.

CIVIL ACTION NO. 3:13-24068

KAREN S. COLE, in her official capacity as CABELL COUNTY CLERK; and VERA J. MCCORMICK, in her official capacity as KANAWHA COUNTY CLERK,

Defendants, and

STATE OF WEST VIRGINIA

Intervenor Defendant.

MEMORANDUM OPINION AND ORDER Plaintiffs have moved for attorneys’ fees and costs. Defendant Clerks and the State oppose the motion and the West Virginia Association of County Officials has moved to file an amicus brief in support of Defendant Clerks. For the reasons set forth below, Plaintiffs’ Motion for Attorneys’ Fees, Expenses, and Costs (ECF No. 145) is GRANTED IN PART and DENIED IN PART. Plaintiffs’ Motion for Extension of Time in Which to File Reply in Support of Motion for Attorneys’ Fees, Expenses, and Costs (152) is DENIED AS MOOT. The West Virginia Association of County Officials’ Motion for Leave to File Brief of Amicus Curiae (154) is GRANTED.

I. Background Plaintiffs brought this action pursuant to Title 42, Section 1983 of the U.S. Code to challenge West Virginia’s ban on same-sex marriage. Plaintiffs, three same-sex couples and a minor child, sued Karen S. Cole, in her official capacity as Cabell County Clerk, and Vera J. McCormick, in her official capacity as Kanawha County Clerk. County clerks are responsible for issuing marriage licenses in their respective counties and recording marriages that take place outside of West Virginia. They are responsible for ensuring that marriage licenses comply with state law, including, at the time this suit was filed, West Virginia’s ban on same-sex marriage. The Plaintiff couples in this case each sought a marriage license from one of the clerks, and each was denied. Accordingly, they filed this suit seeking declaratory relief, asking the Court to declare as unconstitutional West Virginia Code Sections 48-2-104, 48-2-401, and 48-2-603, and all other sources of West Virginia law prohibiting same-sex marriage. Section 48-2-104 dictates the contents of a state marriage license, Section 48-2-401 governs persons authorized to perform marriages, and Section 48-2-603 prohibits recognition of same-sex marriages executed in other states. Plaintiffs also sought an injunction to prohibit Defendant Clerks from enforcing these laws. The State of West Virginia intervened in the case to defend the constitutionality of its laws. Defendant Clerks and the State each filed a motion to dismiss. The Court denied the Clerks’ motions. The Court found that Plaintiffs did not have standing to challenge the non-recognition statute, and thus granted the State’s motion to dismiss. This resulted in dismissal of Plaintiffs’ claim challenging West Virginia Code Section 48-2-603. See ECF No. 56. Plaintiffs filed a motion for summary judgment on their remaining claims. Defendant Clerks and the State then filed their own motions for summary judgment. The State also filed a second motion to dismiss. The Court stayed the case pending a decision from the U.S. Circuit
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Court of Appeals for the Fourth Circuit in Bostic v. Schaefer, a case challenging Virginia’s ban on same-sex marriage. After the Fourth Circuit held that Virginia’s ban was unconstitutional, the Court lifted the stay in the present case and granted Plaintiffs’ motion for summary judgment. The Court denied Defendants’ and the State’s motions for summary judgment, and denied the State’s motion to dismiss. The Court declared Sections 48-2-104 and 48-2-401 unconstitutional in so far as they prohibited same-sex marriage. The Court also enjoined Defendant Clerks from enforcing these statutes to the extent that they were declared unconstitutional. See ECF No. 139. Thereafter, Plaintiffs moved for attorneys’ fees and costs.
II. Statement of the Law Under the “American Rule,” parties generally bear their own fees and costs. Key Tronic Corp. v. United States, 511 U.S. 809, 815 (1994). Congress has, however, carved out several exceptions to this rule through fee-shifting statutes. One such statute is the Civil Rights Attorney’s Fees Award Act, also known as Section 1988, which provides that in a civil rights action brought under Section 1983, “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” 42 U.S.C. § 1988(b) (2012). “[A] prevailing plaintiff ‘should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.’” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (quoting S. Rep. No. 94–1011, at 4 (1976)). Where the prevailing party seeks an attorneys’ fee “so outrageously excessive so as to shock the conscience of the court . . . a complete denial of any fee award is justified.” Fair Housing Council of Greater Washington v. Landow, 999 F.2d 92, 94 (4th Cir. 1993). Barring these or other rare circumstances, attorneys’ fees should be granted to compensate the successful attorneys and “‘ensure effective access to the judicial process’ for persons with civil rights grievances.” Lefemine v. Wideman, 758 F.3d 551, 555 (4th
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Cir. 2014) (quoting Hensley, 461 U.S. at 429). A. Calculation of Fee To calculate a reasonable fee, the Court must follow a three-step process: First, the court must determine the lodestar figure by multiplying the number of reasonable hours expended times a reasonable rate. Second, the court must subtract fees for hours spent on unsuccessful claims unrelated to successful ones. [Third], the court should award some percentage of the remaining amount, depending on the degree of success enjoyed by the plaintiff.
Jones v. Southpeak Interactive Corp. of Delaware, 777 F.3d 658, 675-76 (4th Cir. 2015) (internal quotation marks and citations omitted).
Turning first to the lodestar calculation, the Court must determine a reasonable number of hours spent on the case and a reasonable rate for each attorney involved. The party requesting attorneys’ fees bears the burden of producing evidence of the hours expended. Hensley, 461 U.S. at 433. Where the prevailing attorneys have failed to adequately document their hours, the Court may reduce the fee award. Id. Attorneys should use “billing judgment” when requesting fees. Id. at 434. “[H]ours that are excessive, redundant, or otherwise unnecessary” should be excluded. Id.
Whether certain hours are reasonable is often highly dependent on the nature of the issues litigated. In some cases, attorneys may reasonably request fees for hours spent on public relations, including press conferences and media appearances. In an employment discrimination action, for example, the U.S. Court of Appeals for the Ninth Circuit allowed fees for hours spent on public relations in an attempt to convince the defendants to negotiate a consent decree. Davis v. City & County of San Francisco, 976 F.2d 1536, 1545 (9th Cir. 1992), vacated in part on other grounds, 984 F.2d 345 (1993). The court held: “Where the giving of press conferences and performance of other lobbying and public relations work is directly and intimately related to the
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successful representation of a client, private attorneys do such work and bill their clients. Prevailing civil rights plaintiffs may do the same.” Id. Where public relations work does not directly impact litigation but serves some other purpose, such hours are not reasonable and will not be included in the lodestar calculation. See Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 176 (4th Cir. 1994) (affirming disallowance of fees for hours spent on press and publicity work where attorneys’ efforts were intended to mitigate public relations damage to the plaintiff corporation).
Reasonable rates “are to be calculated according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or nonprofit counsel.” Blum v. Stenson, 465 U.S. 886, 895 (1984). The prevailing party must produce evidence, in addition to affidavits of the party’s own attorneys, demonstrating that the rates requested correspond to “those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Id. at 895 n. 11. The relevant community is the one in which the court sits. Nat’l Wildlife Fed’n v. Hanson, 859 F.2d 313, 317 (4th Cir. 1988). In certain cases, however, where the nature of the litigation indicates that no attorney with the specialized skills required is available in the community, different rates may be reasonable. See id. There are “two questions to be asked in determining whether an exception to the general rule should be granted: are services of like quality truly available in the locality where the services are rendered; and did the party choosing the attorney from elsewhere act reasonably in making that choice?” Id. Once the Court has determined a reasonable rate for each attorney, the Court must multiply this figure by the number of hours reasonably expended to calculate the lodestar.
A plaintiff need not succeed on all her claims to be awarded attorneys’ fees. See Hensley,
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461 U.S. at 433. This brings the Court to the second step in the calculation, reducing the lodestar to reflect unsuccessful claims. See Jones, 777 F.3d at 676. There is no precise formula for making this reduction. Hensley, 461 U.S. at 436. The Court may not simply decrease the fee award by the percentage of Plaintiff’s claims that were unsuccessful. Jones, 777 F.3d at 676. Rather, the Court “may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success.” Hensley, 461 U.S. at 436-37.
The third and final step in the calculation is equally imprecise. The Court must determine what percentage of the calculated fee to award based on “the degree of success obtained.” Id. at 436. The Supreme Court has identified the measure of Plaintiff’s success as the “the most critical factor” to the overall computation of a reasonable fee award. Id. The Court must consider the relief obtained compared to the relief initially sought by the plaintiff. McAfee v. Boczar, 738 F.3d 81, 93 (4th Cir. 2013). The Court should “reduce the award if ‘the relief, however significant, is limited in comparison to the scope of the litigation as a whole.’” Id. at 92 (quoting Hensley, 461 U.S. at 439-40).
B. Distribution of Fee Once the Court has calculated a reasonable fee, it must next determine how to distribute liability for the fee among the defendants. The distribution of fees in this case turns on whether the suit is properly considered an Ex parte Young case against the state of West Virginia, or rather one against Cabell and Kanawha counties. Under the doctrine of Ex parte Young, a plaintiff may challenge the constitutionality of a state law or local ordinance, policy, or custom by bringing suit against an official, in her official capacity, for enforcing or administering that law or rule. Ex parte Young, 209 U.S. 123, 155-56 (1908). If the plaintiff succeeds, any judgment against the official in her official capacity
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“imposes liability on the entity that [s]he represents.” Brandon v. Holt, 469 U.S. 464, 471 (1985). This rule applies to attorneys’ fees as well as any judgment on the merits. See id. at 472. Moreover, contrary to the State’s argument in this case, this rule applies equally to states and local entities. In Hutto v. Finney, 437 U.S. 678 (1978), the Supreme Court held that “Congress undoubtedly intended to . . . authorize fee awards payable by the States when their officials are sued in their official capacities.” Hutto, 437 U.S. at 693-94; see West Virginians for Life, Inc. v. Smith, 952 F. Supp. 342, 348 n. 4 (S.D. W. Va. 1996) (“A § 1988 fee award against a state officer sued in his official capacity imposes liability on the state.”). The Court explained that a state properly sued through a state official in an Ex parte Young action has no immunity from subsequent fees awarded under Section 1988. Hutto, 437 U.S. at 696-98. Accordingly, although fees awarded in an Ex parte Young action are assessed against the defendant official, they are ultimately the responsibility the state or local entity on whose behalf the official acts. Id. It is thus necessary to determine the entity that a defendant official represents in order to identify the entity that will be responsible for attorneys’ fees.
Although the defendant clerks here are, in name, county officials, such officials are sometimes considered state agents for purposes of a specific case. Several courts have held that local and county officials may be considered state officials for purposes of an Ex parte Young suit where they are responsible for enforcing or administering state law rather than local or county policies. In Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014), same-sex couples challenged Virginia’s same-sex marriage ban by suing, among others, a city clerk who had denied one of the couples a marriage license. Bostic, 760 F.3d at 367, 371. The U.S. Court of Appeals for the Fourth Circuit held that the clerk was a proper defendant through which to sue the state of Virginia under Ex parte Young because he was responsible for enforcing Virginia’s same-sex marriage ban.
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See id. at 371 & n. 3. The Court explained that the clerk’s action in denying the plaintiffs’ application for a marriage license was “clearly attributable to the state.” Id. at 371 n. 2. The U.S. Courts of Appeals for the Fifth, Sixth, and Seventh Circuits have also held that a county or local official may be properly considered an agent of the state where that official is sued for enforcing a state law, rather than a discretionary rule or local policy. See Brotherton v. Cleveland, 173 F.3d 552, 566 (6th Cir. 1999) (“Where county officials are sued simply for complying with state mandates that afford no discretion, they act as an arm of the State.”); Bethesda Lutheran Homes and Servs., Inc. v. Leean, 154 F.3d 716, 718 (7th Cir. 1998) (explaining that where a municipality is forced to follow an unconstitutional state law, it is the state law and not the municipality that is responsible for the plaintiff’s injury); Echols v. Parker, 909 F.2d 795, 801 (5th Cir. 1990) (“[W]hen a state statute directs the actions of an official, as here, the officer, be he state or local, is acting as a state official.”).
Thus, if the Court finds that Defendant Clerks were sued for enforcing West Virginia state law they may properly be considered state officials for purposes of this matter. As such, any fees awarded would be assessed against the clerks in their official capacities, to be paid by the State of West Virginia. If the Court instead finds that the clerks were sued for administering a county rule or policy, they would properly be considered agents of their respective counties, not of the State. In that case, it is the counties and not the State that would be liable for the judgment and any attorneys’ fees assessed against the clerks. Brandon, 469 U.S. at 472; see also Monell v. New York City Dep’t of Social Servs., 436 U.S. 658, 690, 694 (1978) (explaining that local government entities are liable under Section 1983 where local policy or custom causes injury).
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III. Discussion A. Calculation of Fee Plaintiffs seek $342,576.25 in attorneys’ fees for 1,033.25 hours, including 74.1 hours of paralegal time. Defendant Clerks strongly oppose Plaintiffs’ request. They argue that several special circumstances justify denying a fee award altogether. First, they claim that Plaintiffs’ proposed fee is so excessive as to shock the conscience. They also argue that they have done no wrong but were merely fulfilling their duty as officers of the state. Furthermore, the clerks contend that filing this action was unnecessary given that Virginia’s same-sex marriage case “would unquestionably be decided and appealed to the Fourth Circuit long before this action progressed past its infancy.” They also claim that this lawsuit was “manufactured” by Plaintiffs’ counsel. Finally, Defendant Clerks argue that imposition of attorneys’ fees on the clerks and their respective counties is inherently unjust because they were not responsible for enacting the challenged laws. ECF No. 153 The State also challenges the fee request, arguing that no fee is reasonable in this case because “[s]ame-sex marriage is a changing area of law” and “[t]here was no question of constitutionality” when the same-sex marriage ban was passed. Thus “it would be unfair and unjust to require payment of fees by state and county officials acting in good faith” to enforce the ban. ECF No. 155. An impressive battalion of lawyers, eleven attorneys from three firms, ably represented Plaintiffs to successfully prosecute an important civil rights claim, for their benefit and that of many other West Virginians. One of many cases cascading from the United States Supreme Court’s decision in United States v. Windsor, 133 S. Ct. 2675 (2013), this action resulted in a significant victory for Plaintiffs, though the tide of success in other states, the Circuit, and
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ultimately the Supreme Court surely helped carry them. Although same-sex marriage was a changing area of law when this case was filed, and Plaintiffs’ counsel sought out plaintiffs in West Virginia to file this suit, this case constitutes a proper suit under Section 1983 to vindicate Plaintiffs’ civil rights and overturn unconstitutional legislation. That the clerks and the State acted in good faith in enforcing this legislation is irrelevant. See Lefemine, 758 F.3d at 557 (“[W]e, and our sister circuits, have repeatedly rejected good faith as a special circumstance justifying the denial of Section 1988 attorneys’ fees.”). Furthermore, the fee requested is not so extreme as to shock the conscience and warrant the denial of attorneys’ fees. The Court thus finds that Plaintiffs are entitled to an award of fees and costs. The Court also finds, however, that the hourly rates sought and total hours expended are excessive.
First, the Court finds that some of Plaintiffs’ attorneys are not entitled to the hourly rates they submitted. This Court is obligated to apply local market rates unless some circumstance justifies looking to a different or larger market. Nat’l Wildlife Fed’n, 859 F.2d at 317. Though each attorney provided some support for the rates each seeks, those rates are well above the relevant market within which this Court sits. Lawyers from the two nationally recognized firms of Jenner and Block and Lambda Legal chose to search for plaintiffs and venues in West Virginia to bring this action. While it is admirable that these firms initiated this civil rights litigation and brought to it a level of expertise and stature that may not have been available from in-state firms, the fact remains that they sought out West Virginia plaintiffs and a West Virginia forum. They were not sought out by state residents who found it difficult to obtain representation for these claims in West Virginia. They should not expect hourly rates to be based upon rates from large metropolitan markets, such as their home cities, or schedules like the Laffey Matrix. Therefore,
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the Court will consider its knowledge of, and experience with, reasonable attorneys’ fees and hourly rates within this market.
The attorneys with Jenner and Block contributed a substantial portion of the total hours, through four attorneys. In his affidavit in support of Jenner and Block attorneys, Mr. Smith relies on the Laffey Matrix1 and points out that the firm’s usual rates for these attorneys is even higher. The Matrix is updated annually, and new rates began on June 1, 2014. Mr. Smith submitted 22.5 hours at hourly rates of $771 and $789, covering the periods before and after June 1, 2014. His credentials were impressive and command a high hourly rate. His firm was primarily responsible for drafting most of the pleadings and submissions, in particular the briefing on summary judgment and other dispositive motions, which comprised the bulk of the work performed in the case as there was no discovery. Ms. Harrison, an experienced litigator with Jenner and Block, contributed over ninety hours and supervised the work of two associates, Mr. McCotter and Mr. Tarasen. She seeks an hourly rate of $567 through June 1, 2014, and $655 thereafter. Mr. McCotter worked 95.5 hours and Mr. Tarasen 147.75 hours, each at hourly rates of $320 and $328.
While the Matrix serves a useful purpose, its applicability in this market is limited. This Court has contemporaneously determined hourly rates in other cases, and considered hourly rates set by colleagues in the state and federal courts in this area. The Court sets Mr. Smith’s rate as $500 per hour; this rate coincides with a highly competent, experienced senior litigator’s rates and reflects the more limited role of Mr. Smith in this case. For Ms. Harrison, the Court fixes an hourly rate of $400, commensurate with an experienced and seasoned litigator managing
1 The Laffey Matrix is a “schedule of attorneys’ fees, first developed based on information about the prevailing rates charged by federal litigators in the District of Columbia” which is updated annually based on the Consumer Price Index. Rooths v. District of Columbia, 802 F. Supp. 2d 56, 61 (D.D.C. 2011). Federal courts in the District of Columbia use it as a starting point in setting attorneys’ fees. Id. at 62. -11-

subordinate staff. For the associates, each with less than five years of experience, the hourly rate of $250 is awarded. Since all of the work was performed between mid-2013 and spring 2015, the Court sees no need to apply any different rates or adjustments. Jenner and Block also seeks $175 per hour for paralegal time; the Court sets a rate of $100 per hour, consistent with the local market.
Turning to the Lambda Legal attorneys, their work was also substantial, totaling over 400 hours. Lambda Legal has considerable experience in this particular area of civil rights, serving as advocates for gay and lesbian rights. Its three lawyers assigned here—Ms. Taylor, Ms. Loewy, and Ms. Littrell—ask for hourly rates of $350, $325, and $300, respectively. Considering their length of experience and specific expertise, and the nature of their responsibilities in this matter, the Court reduces their hourly rates to $325, $300, and $275, respectively.
Finally, the Court addresses the fees requested by the Tinney Law Firm. Led primarily by John Tinney, Jr., the firm used four attorneys for a variety of purposes, contributing about 150 hours at rates from $205 to $300 per hour. The firm’s paralegal also spent 60.6 hours on the case, seeking a rate of $100 per hour, which is typical. Mr. Tinney has been engaged in complex litigation throughout this state for twenty years, and enjoys a solid representation. His associate, Ms. Kittredge, is less experienced, but seeks the lower rate of $225 per hour. The Court approves the rates he seeks for his firm.
As the Court understands its duty, it must determine the lodestar figure by multiplying these hourly rates times the number of hours reasonably expended. This task is more difficult; the Court always hesitates to question, much less reject, a lawyer’s statement of the time spent representing a client. Here, the Court does not doubt the time keeping performed by counsel and will not nitpick their records to exclude particular entries for duplication or redundancy. Nevertheless, the Court must adjust the fee award to reflect that more lawyers than were
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reasonably needed spent substantially more hours than reasonably necessary to represent Plaintiffs.
First, Plaintiffs are not entitled to the 32 hours of time attributable to press conferences and media analysis under the Rum Creek standard. See Rum Creek, 31 F.3d at 176. The Court thus subtracts 32 hours for time spent on media relations. See ECF No. 155, Ex. 16.
Second, the Court observes that Plaintiffs’ attorneys rightfully point out their experience with similar cases as one of the justifications for their higher hourly rates. The fact is that several of these lawyers worked on the same issues in parallel cases brought since Windsor and on related issues even before that. Logically then, their prior knowledge should have helped them avoid inefficient or unnecessary work. Further, with this many relatively seasoned, senior litigators, there was little need for several lawyers to review everything prepared for Plaintiffs or filed by Defendants and the State. The constitutional challenges brought just after the Windsor decision provided a clear path and resulted in a steady stream of favorable decisions in federal and state courts, which Plaintiffs quickly forwarded on to this Court.
There was no discovery, only one brief hearing, and only two rounds of substantial briefing for early motions to dismiss and later cross-motions for summary judgment. Each firm bills for a large number of hours with respect to each major activity. Apparently, each firm undertook a supervisory role in most aspects of the Plaintiffs’ case, though all of the substantive work of subordinates was already reviewed by a senior attorney. This approach strikes the Court as lawyers working by committee, rather than delineating and delegating to share the workload. Consequently, the Court reduces the lodestar amounts for each attorney to one-third.
Next, the Court must reduce the fee award to account for any unsuccessful claims. All parties agree that the Plaintiffs were not successful on their “non-recognition claim.” Plaintiffs
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concede that 31 hours should be subtracted from their total. ECF No. 156, Ex. 3. The Court thus

subtracts the 31 hours expended by Plaintiffs’ counsel on the non-recognition claim.

The Court’s lodestar calculations are as follows: Attorney/Paralegal Hours Requested Hours Awarded2 Rate

Total Fee

Paul Smith

22.5

7

$500

$3,500

Lindsay Harrison 91.25

29

$400

$11,600

R. Trent McCotter 95.75

32

$250

$8,000

Nicholas Tarasen 147.75

45

$250

$11,250

Camilla Taylor

155.2

51

$325

$16,575

Karen Loewy

118.1

38

$300

$11,400

Elizabeth Littrell 157.7

52

$275

$14,300

John Tinney, Jr. 92.9

28

$300

$8,400

James Tinney

25.6

5

$240

$1,200

Heather Foster

Kittredge

52

16

$225

$3,600

John Cecil

0.4

0

$205

$0

Cheryl Olson

13.5

5

$100

$500

Nodgie Kennedy 60.6

18

$100

$1,800

Total: $92,125

This total number represents the lodestar for all attorneys’ and paralegal fees.

2 This column reflects the total number of hours actually awarded to each attorney and paralegal, rounded to the nearest whole number, after subtracting the hours spent on the non-recognition claim, see ECF No. 156, Ex. 3, and media relations, see ECF No. 155, Ex. 16, and reducing the hours by two-thirds.
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Finally, the Court must assess the remaining factors which may bear upon setting the fee award. Here, the Court finds that the considerations outlined in Hensley do not alter the award. The factors relating to counsels’ time, skill, experience, and relation to the clients are embodied in the Court’s determination of the lodestar. The novelty of the issues and undesirability of the case are likewise of lessened import here due to the tide of similar decisions since Windsor. The remaining factors are not materially significant. The Court must also consider the relief obtained and reduce the award if it is less than that initially sought by Plaintiffs. McAfee, 738 F.3d at 92-93. The Court has already reduced the hours in the lodestar to compensate for the time spent on Plaintiffs’ failed non-recognition claim. As to the remaining claims, Plaintiffs achieved complete success. In their complaint, Plaintiffs sought a declaration that West Virginia’s laws prohibiting same-sex marriage are unconstitutional and an injunction preventing Defendant Clerks from enforcing those laws. ECF No. 8. The Court granted Plaintiffs their requested relief. Accordingly, no further adjustment of the lodestar is appropriate.
B. Calculation of Costs Plaintiffs have also requested $7,679.64 in costs and expenses. The Court has reviewed the itemized cost charts and finds the request reasonable. The Court awards Plaintiffs $7,679.64 for costs and expenses. C. Distribution of Fees and Costs Plaintiffs sued the Cabell County Clerk and Kanawha County Clerk in their official capacities. The state of West Virginia then intervened to defend the constitutionality of the challenged statutes pursuant to Title 28, Section 2403(b) of the U.S. Code. Plaintiffs did not sue any state officials. To identify the entity responsible for the fees and costs in this matter, the Court must determine whether Defendant Clerks represented the State or their respective counties
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at the time they denied marriage licenses to Plaintiff couples.3 See Brandon, 469 U.S. at 471.
The clerks argue that they were “officers of the State of West Virginia” and were enforcing West
Virginia law when they denied marriage licenses to Plaintiffs. ECF No. 153. They maintain that
they have done nothing more than obey “statutes enacted by the West Virginia Legislature, as the
duly elected representatives of the citizens of the State of West Virginia.” They contend that they
should not be held liable for upholding the State’s laws. Instead, to the extent that Plaintiffs are
entitled to any fees, the State of West Virginia is liable and the fees “should be satisfied from the
State’s budget.” ECF No. 153.
The State vehemently disagrees. First, the State contends that it is immune from
attorneys’ fees under the Eleventh Amendment because none of the three exceptions to state
sovereign immunity apply: the State has not waived immunity, Congress has not abrogated
immunity, and Plaintiffs have not brought a proper Ex parte Young action against a state official.
According to the State, Defendant Clerks cannot be considered state officials under West Virginia
law.4 The State concedes, however, that had Plaintiffs sued a state official “there would be no
3 Plaintiffs argue that the State and Defendant Clerks should be held jointly and severally liable for attorneys’ fees. ECF No. 156. Although this is sometimes an appropriate approach to distributing liability for fees, it is not applicable in this case. Here, Defendant Clerks were sued in their official capacities. As such, attorneys’ fees and costs will be assessed against them in name only; they will not be held personally liable for paying those fees and costs. See West Virginians for Life, 952 F. Supp. at 348 n. 4. Instead, the government entity that the clerks represented at the time of Plaintiffs’ injury will be responsible for payment. This entity is either Cabell and Kanawha counties, or the state, but not both. Thus only one government entity will be responsible for the attorneys’ fees and costs assessed.
4 The State argues that Defendant Clerks cannot be considered state officials because counties are not considered arms of the state under West Virginia law. Regardless of how West Virginia classifies its counties, county officials may be considered state officials for the limited purposes of liability in an Ex parte Young case. See Bostic, 760 F.3d at 371 n. 2. Further, the State, relying on Bockes v. Fields, 999 F.2d 788, 791 (4th Cir. 1993), maintains that if county officials “truly have no discretion under a state law or policy, they simply should not have been sued in the first place.” ECF No. 155. The State’s reliance on Bockes is misplaced. In Bockes, the plaintiff attempted to place liability on a county for the decision of a county board that acted -16-

immunity and the fee award could be directed in part or in whole against the State in this Court’s discretion.” ECF No. 155. Alternatively, the State argues that even if it is not immune, no attorneys’ fees should be awarded against it. The State contends that it is not liable to Plaintiffs for the judgment and thus it should not be liable to them for attorneys’ fees.
The Court agrees with Defendant Clerks. Sections 48-2-104 and 48-2-401 of the West Virginia Code were state laws prohibiting same-sex marriage. Each Plaintiff couple attempted to obtain a marriage license, and each was denied by one of the defendants pursuant to these state laws. See ECF No. 8. The State has not provided, and the Court has not found, any evidence that Defendant Clerks were administering county rules or policies rather than state law. Moreover, the clerks had no discretion to disregard state law and issue marriage licenses to the plaintiffs. West Virginia law specifically forbids county clerks from “issu[ing] a marriage license contrary to law.” W. Va. Code § 48-2-502 (2001). Any clerk who issues such a license “shall be punished by a fine not exceeding five hundred dollars, or by confinement in the county or regional jail for not more than one year, or by both.” Id. It is clear that Defendant Clerks were required by state law to deny marriage licenses to the plaintiffs and administered state law when they did so. The clerks were thus acting as state agents, rather than county officials, at the time of Plaintiffs’ injuries. Accordingly, they are considered state officials for the purposes of this Ex parte Young suit. See Bostic, 760 F.3d at 371 n. 2; Brotherton, 173 F.3d at 566.
pursuant to state policy. The court held that the county was not liable because the decision was the result of state, not county, policy. In contrast, construing the county clerks in the present case as state officials would place liability on the entity actually responsible for enacting the challenged laws—the State. Moreover, the clerks sued were the officials responsible for enforcing West Virginia’s unconstitutional ban on same-sex marriage. They denied marriage licenses to the plaintiffs and thereby caused Plaintiffs’ injuries. Defendant Clerks were thus proper officials to sue in order to challenge the State’s ban on same-sex marriage, even though other officials could have been proper defendants as well.
-17-

Furthermore, although not named as a defendant in this case, the State was clearly the intended target of this litigation. See Hutto, 437 U.S. at 700 (“[S]uits brought against individual officers for injunctive relief are for all practical purposes suits against the State itself.”). Not only did the Court grant an injunction preventing the clerks from administering the same-sex marriage ban, it declared two of the State’s laws unconstitutional. This declaration is part and parcel of the total relief obtained and shows that the State, not the clerks, is responsible for the legislation that violated Plaintiffs’ civil rights. For the foregoing reasons, the attorneys’ fees assessed against Defendant Clerks will be the responsibility of the State of West Virginia.
D. Total Fees and Costs Plaintiffs are awarded $92,125 in attorneys’ fees, including paralegal fees, and $7,679.64 in costs and expenses. All fees, costs, and expenses are assessed against Defendants in their official capacities as agents of the State of West Virginia.
Conclusion As set forth above, Plaintiffs’ Motion for Attorneys’ Fees, Expenses, and Costs (ECF No. 145) is GRANTED IN PART and DENIED IN PART. Plaintiffs’ Motion for Extension of Time in Which to File Reply in Support of Motion for Attorneys’ Fees, Expenses, and Costs (152) is DENIED AS MOOT. The West Virginia Association of County Officials’ Motion for Leave to File Brief of Amicus Curiae (154) is GRANTED.
ENTER: July 16, 2015
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 Case: 3:13-cv-24068 As of: 11/05/2017 03:26 PM EST 1 of 22

United States District Court Southern District of West Virginia (Huntington)
CIVIL DOCKET FOR CASE #: 3:13−cv−24068

CLOSED,LC−C

McGee et al v. Cole et al Assigned to: Judge Robert C. Chambers Cause: 42:1983 Civil Rights Act
Plaintiff Casie Jo McGee and

Date Filed: 10/01/2013 Date Terminated: 11/07/2014 Jury Demand: None Nature of Suit: 950 Constitutional − State Statute Jurisdiction: Federal Question
represented by Camilla B. Taylor LAMBDA LEGAL DEFENSE & EDUCATION FUND, INC. Suite 2600 105 West Adams Chicago, IL 60603 312/663−4413 Fax: 312/663−4307 Email: ctaylor@lambdalegal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth L. Littrell LAMBA LEGAL DEFENSE & EDUCATION FUND, INC. Suite 1070 730 Peachtree Street, NE Atlanta, GA 30308−1210 404/897−1880 Fax: 404/897−1884 Email: blittrell@lambdalegal.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Heather Foster Kittredge THE TINNEY LAW FIRM P. O. Box 3752 Charleston, WV 25337−3752 304/720−3310 Fax: 304/720−3315 Email: heather@tinneylawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen L. Loewy LAMBDA LEGAL DEFENSE & EDUCATION FUND, INC. 19th Floor 120 Wall Street New York, NY 10005−3904 212/809−8585 Fax: 212/809−0055 Email: kloewy@lambdalegal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lindsay C. Harrison JENNER & BLOCK Suite 900

Case: 3:13-cv-24068 As of: 11/05/2017 03:26 PM EST 2 of 22

1099 New York Avenue, NW Washington, DC 20001−4412 202/639−6000 Fax: 202/639−6006 Email: lharrison@jenner.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Luke C. Platzer JENNER & BLOCK Suite 900 1099 New York Avenue, NW Washington, DC 20001−4412 202/639−6000 Fax: 202/639−6006 Email: lplatzer@jenner.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Paul M. Smith JENNER & BLOCK Suite 900 1099 New York Avenue, NW Washington, DC 20001−4412 202/639−6000 Fax: 202/639−6006 Email: psmith@jenner.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

R. Trent McCotter JENNER & BLOCK Suite 900 1099 New York Avenue, NW Washington, DC 20001−4412 202/639−6000 Fax: 202/639−6066 Email: rmccotter@jenner.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

John H. Tinney , Jr. HENDRICKSON & LONG P. O. Box 11070 Charleston, WV 25339 304/346−5500 Fax: 304/346−5515 Email: jtinney@handl.com ATTORNEY TO BE NOTICED

Plaintiff Sarah Elizabeth Adkins

represented by Camilla B. Taylor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth L. Littrell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 3:13-cv-24068 As of: 11/05/2017 03:26 PM EST 3 of 22

Plaintiff
Justin Murdock and

Heather Foster Kittredge (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John H. Tinney , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen L. Loewy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lindsay C. Harrison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke C. Platzer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paul M. Smith (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
R. Trent McCotter (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Camilla B. Taylor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth L. Littrell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Heather Foster Kittredge (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John H. Tinney , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen L. Loewy (See above for address) LEAD ATTORNEY

Case: 3:13-cv-24068 As of: 11/05/2017 03:26 PM EST 4 of 22

ATTORNEY TO BE NOTICED

Lindsay C. Harrison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Luke C. Platzer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Paul M. Smith (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

R. Trent McCotter (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
William Glavaris and

represented by Camilla B. Taylor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth L. Littrell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Heather Foster Kittredge (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John H. Tinney , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen L. Loewy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lindsay C. Harrison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Luke C. Platzer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Paul M. Smith

Case: 3:13-cv-24068 As of: 11/05/2017 03:26 PM EST 5 of 22

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

R. Trent McCotter (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Nancy Elizabeth Michael and

represented by Camilla B. Taylor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth L. Littrell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Heather Foster Kittredge (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John H. Tinney , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen L. Loewy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lindsay C. Harrison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Luke C. Platzer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Paul M. Smith (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

R. Trent McCotter (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Jane Louise Fenton individually and as next friends of

represented by Camilla B. Taylor (See above for address)

Case: 3:13-cv-24068 As of: 11/05/2017 03:26 PM EST 6 of 22

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth L. Littrell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Heather Foster Kittredge (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John H. Tinney , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen L. Loewy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lindsay C. Harrison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Luke C. Platzer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Paul M. Smith (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

R. Trent McCotter (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
A.S.M. a minor child

represented by Camilla B. Taylor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth L. Littrell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Heather Foster Kittredge (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:13-cv-24068 As of: 11/05/2017 03:26 PM EST 7 of 22
John H. Tinney , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen L. Loewy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lindsay C. Harrison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke C. Platzer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paul M. Smith (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
R. Trent McCotter (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant Karen S. Cole in her official capacity as Cabell County Clerk; and
Defendant Vera J. McCormick in her official capacity as Kanawha County Clerk

represented by Lee Murray Hall JENKINS FENSTERMAKER P. O. BOX 2688 Huntington, WV 25726−2688 304/523−2100 Fax: 304/523−2347 Email: lmh@jenkinsfenstermaker.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah A. Walling JENKINS FENSTERMAKER P. O. Box 2688 Huntington, WV 25726−2688 304/523−2100 Fax: 304/523−2347 Email: saw@jenkinsfenstermaker.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Charles R. Bailey BAILEY & WYANT P. O. Box 3710 Charleston, WV 25337−3710 304/345−4222 Fax: 304/343−3133

Case: 3:13-cv-24068 As of: 11/05/2017 03:26 PM EST 8 of 22
Email: cbailey@baileywyant.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael W. Taylor BAILEY & WYANT P. O. Box 3710 Charleston, WV 25337−3710 304/345−4222 Fax: 304/343−3133 Email: mtaylor@baileywyant.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Defendant
West Virginia Association of County Officials amicus curiae

V. Intervenor Defendant State of West Virginia
Movant The Family Policy Council of West Virginia

represented by Elbert Lin OFFICE OF THE ATTORNEY GENERAL State Capitol Complex Building 1, Room E−26 Charleston, WV 25305 304/558−2021 Fax: 304/558−0140 Email: elbert.lin@wvago.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie Marie Blake OFFICE OF THE ATTORNEY GENERAL State Capitol Complex, Room 26E Charleston, WV 25305 304/558−2021 Fax: 304/558−0140 Email: Julie.M.Blake@wvago.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie A. Warren OFFICE OF THE ATTORNEY GENERAL State Capitol Complex Building 1, Room E−26 Charleston, WV 25305 304/558−2021 Fax: 304/558−9023 Email: Julie.Warren@wvago.gov (Inactive) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeremiah G. Dys P. O. Box 566 Charleston, WV 25322

Case: 3:13-cv-24068 As of: 11/05/2017 03:26 PM EST 9 of 22
304/881−5196 Email: jdys@firstliberty.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/01/2013 10/01/2013 10/01/2013 10/01/2013 10/01/2013 10/01/2013 10/01/2013 10/01/2013 10/01/2013
10/01/2013

# Docket Text
1 STATEMENT OF VISITING ATTORNEY from Karen L. Lowey on behalf of Casie Jo McGee, Sarah Elizabeth Adkins, Justin Murdock, William Glavaris, Nancy Elizabeth Michael, Jane Louise Fenton, A.S.M. Local counsel: John H. Tinney, Jr. Fee $50.00. Receipt # 0425−2684194. (Tinney, John) (Modified on 10/1/2013 to add party filers) (skh).
2 STATEMENT OF VISITING ATTORNEY from Camilla B. Taylor on behalf of Casie Jo McGee, Sarah Elizabeth Adkins, Justin Murdock, William Glavaris, Nancy Elizabeth Michael, Jane Louise Fenton, A.S.M. Local counsel: John H. Tinney, Jr. Fee $50.00. Receipt # 0425−2684216. (Tinney, John) (Modified on 10/1/2013 to add party filers) (skh).
3 STATEMENT OF VISITING ATTORNEY from Paul M. Smith on behalf of Casie Jo McGee, Sarah Elizabeth Adkins, Justin Murdock, William Glavaris, Nancy Elizabeth Michael, Jane Louise Fenton, A.S.M. Local counsel: John H. Tinney, Jr. Fee $50.00. Receipt # 0425−2684234. (Tinney, John) (Modified on 10/1/2013 to add party filers) (skh).
4 STATEMENT OF VISITING ATTORNEY from R. Trent McCotter on behalf of Casie Jo McGee, Sarah Elizabeth Adkins, Justin Murdock, William Glavaris, Nancy Elizabeth Michael, Jane Louise Fenton, A.S.M. Local counsel: John H. Tinney, Jr. Fee $50.00. Receipt # 0425−2684248. (Tinney, John) (Modified on 10/1/2013 to add party filers) (skh).
5 STATEMENT OF VISITING ATTORNEY from Luke C. Platzer on behalf of Casie Jo McGee, Sarah Elizabeth Adkins, Justin Murdock, William Glavaris, Nancy Elizabeth Michael, Jane Louise Fenton, A.S.M. Local counsel: John H. Tinney, Jr. Fee $50.00. Receipt # 0425−2684266. (Tinney, John) (Modified on 10/1/2013 to add party filers) (skh).
6 STATEMENT OF VISITING ATTORNEY from Lindsay C. Harrison on behalf of Casie Jo McGee, Sarah Elizabeth Adkins, Justin Murdock, William Glavaris, Nancy Elizabeth Michael, Jane Louise Fenton, A.S.M. Local counsel: John H. Tinney, Jr. Fee $50.00. Receipt # 0425−2684283. (Tinney, John) (Modified on 10/1/2013 to add party filers) (skh).
7 STATEMENT OF VISITING ATTORNEY from Elizabeth L. Littrell on behalf of Casie Jo McGee, Sarah Elizabeth Adkins, Justin Murdock, William Glavaris, Nancy Elizabeth Michael, Jane Louise Fenton, A.S.M. Local counsel: John H. Tinney, Jr. Fee $50.00. Receipt # 0425−2684296. (Tinney, John) (Modified on 10/1/2013 to add party filers) (skh).
8 COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF. Filing Fee $400.00. Receipt # 0425−2683841. (Attachments: # 1 Civil Cover Sheet) (skm)
9 ELECTRONIC SUMMONS ISSUED as to Karen S. Cole, re: 8 Complaint for Declaratory Judgment. Summons returnable 21 days. Instructions to Counsel: This is your electronic summons. Please print as many copies of the Summons and Complaint as are necessary to effectuate service under Fed. R. Civ. P. 4. See Proof of Service page of this Summons form for filing a return of service if required by Fed. R. Civ. P. 4(l). (skm)
10 ELECTRONIC SUMMONS ISSUED as to Vera J. MCCormick, re: 8 Complaint for Declaratory Judgment. Summons returnable 21 days. Instructions to Counsel: This is your electronic summons. Please print as many copies of the Summons and Complaint as are necessary to effectuate service under Fed. R. Civ. P. 4. See Proof of Service page of this Summons form for filing a return of service if required by Fed. R. Civ. P. 4(l). (skm)

Case: 3:13-cv-24068 As of: 11/05/2017 03:26 PM EST 10 of 22

10/01/2013 10/01/2013 10/02/2013 10/03/2013 10/04/2013 10/08/2013 10/09/2013
10/21/2013 10/21/2013 10/21/2013 10/22/2013
10/22/2013 10/23/2013 10/23/2013

11 STANDING ORDER IN RE: ASSIGNMENT AND REFERRAL OF CIVIL ACTIONS AND MATTERS TO MAGISTRATE JUDGES ENTERED APRIL 8, 2013. Discovery referred to Magistrate Judge Eifert. (cc:attys; any unrepresented party) (skm)
CASE assigned to Judge Robert C. Chambers. (ras)
12 SUMMONS RETURNED EXECUTED by Personal Service for Kanawha County Clerk, Vera J. McCormick. Kanawha County Clerk, Vera J. McCormick served on 10/2/2013, answer due 10/23/2013. Summons served on Vera J. McCormick, Kanawha County Clerk. (Tinney, John)
13 EMAIL NOTIFICATION to Karen L. Loewy, Camilla B. Taylor, Paul M. Smith, R. Trent McCotter, Luke C. Platzer, Lindsay C. Harrison and Elizabeth L. Littrell with Notice from Teresa L. Deppner, Clerk, Re: Electronic filing requirements. (Attachments: # 1 Clerk's Notice) (jkk)
14 NOTICE OF CONSTITUTIONAL QUESTION by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock (Attachment: # 1 Exhibit A)(Tinney, John)
15 SUMMONS RETURNED EXECUTED by Personal Service for Karen S. Cole. Karen S. Cole served on 10/8/2013, answer due 10/29/2013. Summons served on Teresa Powell, Chief Deputy. (Tinney, John)
16 CERTIFICATION OF CONSTITUTIONAL QUESTION certifying that Plaintiffs in this case are challenging the constitutionality of the following provisions of the West Virginia Code: W.Va. Code §§ 48−2−104, 48−2−401, and 48−2−603, and any other sources of West Virginia law that exclude same−sex couples from marriage or from recognition of marriages entered into by same−sex couples in another jurisdiction. Signed by Judge Robert C. Chambers on 10/9/2013. (cc: Attorney General, attys, and any unrepresented party) (mkw)
17 MOTION by Vera J. McCormick to Extend Time Frame to File a Responsive Pleading (Bailey, Charles)
18 MEMORANDUM by Vera J. McCormick in support of 17 MOTION by Vera J. McCormick to Extend Time Frame to File a Responsive Pleading (Bailey, Charles)
19 MOTION by Vera J. McCormick for Expedited Ruling on Motion by Vera J. McCormick to Extend Time Frame to File a Responsive Pleading (Bailey, Charles)
20 ORDER re: 17 MOTION by Vera J. McCormick to Extend Time Frame to File a Responsive Pleading and 19 MOTION by Vera J. McCormick for Expedited Ruling on Motion by Vera J. McCormick to Extend Time Frame to File a Responsive Pleading; directing Plaintiffs to file a response to the motion to extend time by 10/24/2013; suspending the Defendant's responsive pleading deadline until further order of this Court; holding in abeyance the motion to extend time and will rule on that motion after receiving Plaintiffs' response. Signed by Judge Robert C. Chambers on 10/22/2013. (cc: attys; any unrepresented parties) (mkw)
21 RESPONSE by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock in opposition to 17 MOTION by Vera J. McCormick to Extend Time Frame to File a Responsive Pleading (Tinney, John)
22 REPLY by Vera J. McCormick to 21 Response In Opposition. (Bailey, Charles)
23 MEMORANDUM OPINION AND ORDER granting Defendant Vera J. McCormick's 17 MOTION to Extend Time Frame to File a Responsive Pleading and 19 MOTION for Expedited Ruling on Motion to Extend Time Frame to File a Responsive Pleading; DEMANDING that Defendant McCormick file any responsive pleading within five days of the Attorney General's intervention or within five days of when the period for intervention expires, whichever comes earlier; furthermore, applying this Order to Defendant Karen S. Cole as well; advising the parties that the Court expects to convene a scheduling conference to discuss a common briefing schedule once it has been determined whether the Attorney General will be intervening in this case. Signed by Judge Robert C. Chambers on 10/23/2013. (cc: attys; any unrepresented parties)

Case: 3:13-cv-24068 As of: 11/05/2017 03:26 PM EST 11 of 22

10/24/2013 11/22/2013 11/26/2013 11/26/2013 12/02/2013 12/02/2013
12/10/2013
12/10/2013
12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/17/2013 12/20/2013
12/23/2013 12/30/2013 12/30/2013

(mkw)
24 NOTICE OF APPEARANCE by Lee Murray Hall, Sarah A. Walling on behalf of Karen S. Cole. (Attachment: # 1 Certificate of Service)(Hall, Lee)
25 MOTION by State of West Virginia to Intervene as Defendant (Lin, Elbert)
26 MOTION by Vera J. McCormick to Dismiss 8 Complaint for Declaratory Judgment and Injunctive Relief (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Bailey, Charles)
27 MEMORANDUM by Vera J. McCormick in support of 26 MOTION by Vera J. McCormick to Dismiss 8 Complaint for Declaratory Judgment and Injunctive Relief (Bailey, Charles)
28 ORDER granting State of West Virginia's 25 MOTION to Intervene as a defendant. Signed by Judge Robert C. Chambers on 12/2/2013. (cc: attys; any unrepresented parties) (mkw)
29 ORDER AND NOTICE: Rule 12(b) Motions 12/16/2013. Rule 26(f) Meeting 12/16/2013. Last day to file report of Rule 26(f) Meeting 12/22/2013. Scheduling/status Conference at 02:30 PM on 1/6/2014 in Huntington. Entry of Scheduling Order 1/16/2014. Last Day to make Rule 26(a)(1) disclosures 1/21/2014. Signed by Judge Robert C. Chambers on 12/2/2013. (cc: attys; any unrepresented parties) (mkw)
30 MEMORANDUM by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock in opposition to 26 MOTION by Vera J. McCormick to Dismiss 8 Complaint for Declaratory Judgment and Injunctive Relief (Attachment: # 1 Exhibit A)(Tinney, John) (Modified on 12/10/2013 to remove and replace incomplete Exhibit A) (skh).
NOTICE OF DOCKET CORRECTION re: #30 Memorandum by Plaintiffs in opposition to Motion by Vera J. McCormick to Dismiss. ERROR: Incomplete Exhibit A attached. CORRECTION: Exhibit A removed and replaced with complete image. (skh)
31 MOTION by Karen S. Cole to Dismiss 8 Complaint (Hall, Lee) (Modified on 12/16/2013 to add link to #8 complaint) (skh).
32 MEMORANDUM by Karen S. Cole in support of 31 MOTION by Karen S. Cole to Dismiss (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Certificate of Service)(Hall, Lee)
33 NOTICE OF CHANGE OF ATTORNEY INFORMATION by Julie A. Warren on behalf of State of West Virginia. (Warren, Julie)
34 MOTION by State of West Virginia to Dismiss 8 Complaint (Warren, Julie) (Modified on 12/16/2013 to add link to #8 complaint) (skh).
35 REPLY by Vera J. McCormick to 30 Memorandum In Opposition. (Bailey, Charles)
36 RULE 26(f) REPORT OF PLANNING MEETING by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock, Karen S. Cole, Vera J. McCormick, State of West Virginia. (Tinney, John) (Modified on 12/20/2013 to add party filers) (skh).
37 MEMORANDUM by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock in opposition to 31 MOTION by Karen S. Cole to Dismiss 8 Complaint (Tinney, John)
38 REPLY by Karen S. Cole to 37 Memorandum In Opposition. (Attachment: # 1 Certificate of Service)(Hall, Lee) (Modified on 12/30/2013 to remove links to #31 motion and #32 memorandum) (skh).
39 MEMORANDUM by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock in opposition to 34 MOTION by State of West Virginia to Dismiss 8 Complaint (Tinney, John) (Additional attachments added on 12/31/2013: # 1 Declaration of Casie Jo McGee, # 2 Declaration of Sarah Elizabeth Adkins, # 3 Declaration of Justin Murdock, # 4

Case: 3:13-cv-24068 As of: 11/05/2017 03:26 PM EST 12 of 22

12/30/2013
12/30/2013 12/31/2013 12/31/2013 12/31/2013 01/03/2014
01/03/2014 01/03/2014 01/06/2014 01/06/2014 01/09/2014 01/10/2014 01/13/2014

Declaration of William Glavaris, # 5 Declaration of Nancy Elizabeth Michael, # 6 Declaration of Jane Louise Fenton) (mkw). (Modified on 12/31/2013 to add additional attachments that were inadvertently omitted) (mkw).
40 MOTION by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock for Summary Judgment (Attachments: # 1 Statement of Undisputed Facts, # 2 Declaration of Casie Jo McGee, # 3 Declaration of Sarah Elizabeth Adkins, # 4 Declaration of Justin Murdock, # 5 Declaration of William Glavaris, # 6 Declaration of Nancy Elizabeth Michael, # 7 Declaration of Jane Louise Fenton)(Tinney, John)
41 BRIEF by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock in support of 40 MOTION by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock for Summary Judgment (Tinney, John)
NOTICE OF DOCKET CORRECTION re: 39 MEMORANDUM. Error: Declarations that were to be attachments to the memorandum were inadvertently omitted. Correction: Added declarations as attachments to the memorandum. (mkw)
42 DECLARATION OF JOHN H. TINNEY, JR. on behalf of A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock in support of 39 Memorandum In Opposition. (Attachments: # 1 Legislative History, # 2 Memorandum Opinion, # 3 Senate Bill No. 146, # 4 Final Senate Bill No. 146)(Tinney, John)
43 JOINT MOTION by State of West Virginia, Vera J. McCormick, Karen S. Code to Stay Briefing on 40 MOTION by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock for Summary Judgment, 41 Brief In Support (Lin, Elbert) (Modified on 12/31/2013 to add party filers) (skh).
44 NOTICE OF SUPPLEMENTAL AUTHORITY IN OPPOSITION TO 26 MOTION by Vera J. McCormick to Dismiss 8 Complaint for Declaratory Judgment and Injunctive Relief and 31 MOTION by Karen S. Cole to Dismiss 8 Complaint A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Tinney, John) (Modified on 1/3/2014 to remove links to ## 30, 32 and 37 memoranda and #38 reply) (skh).
45 JOINT MOTION by Vera J. McCormick, Karen S. Cole to Strike 44 Notice of Supplemental Authority (Bailey, Charles) (Modified on 1/3/2014 to add party filer) (skh).
46 MEMORANDUM by Vera J. McCormick, Karen S. Cole in support of 45 JOINT MOTION by Vera J. McCormick, Karen S. Cole to Strike 44 Notice of Supplemental Authority (Bailey, Charles) (Modified on 1/3/2014 to add party filer) (skh).
47 RESPONSE/REPLY by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock in opposition to 45 JOINT MOTION by Vera J. McCormick, Karen S. Cole to Strike 44 Notice of Supplemental Authority (Loewy, Karen) (Modified on 1/6/2014 to remove link to #46 memorandum) (skh).
48 SCHEDULING CONFERENCE held by Judge Robert C. Chambers on 1/6/2014; Court Reporter: Teresa Ruffner. (trj) (Entered: 01/09/2014)
49 REPLY by State of West Virginia to 39 Memorandum In Opposition. (Lin, Elbert)
50 ORDER holding in abeyance the ruling on Defendants' 43 MOTION to Stay Briefing on Plaintiffs' motion for summary judgment until the Court enters its scheduling order. Signed by Judge Robert C. Chambers on 1/10/2014. (cc: attys; any unrepresented party) (skm)
51 REPLY by Karen S. Cole, Vera J. McCormick to 47 Response In Opposition. (Attachment: # 1 Certificate of Service)(Hall, Lee)

Case: 3:13-cv-24068 As of: 11/05/2017 03:26 PM EST 13 of 22

01/17/2014 01/24/2014 01/27/2014 01/27/2014 01/29/2014
02/05/2014 02/06/2014 02/10/2014 02/11/2014

52 ORDER re: Defendants' 43 JOINT MOTION to Stay Briefing on MOTION by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock for Summary Judgment; Staying the deadline for Defendants' responses to Plaintiffs' motion for summary judgment; Defendants' responses will be due seven days after entry of an Order resolving the motions to dismiss, should the Court decline to dismiss the case in its entirety. Signed by Judge Robert C. Chambers on 1/17/2014. (cc: attys; any unrepresented parties) (mkw)
53 MOTION by State of West Virginia to Amend the Deadline to Respond to 40 MOTION by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock for Summary Judgment to February 7, 2014, or seven days after Court order on Motions to Dismiss, whichever is later (Lin, Elbert) (Modified on 1/24/2014 to remove link to #52 order) (skh).
54 PARTIAL OPPOSITION by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock to 53 MOTION by State of West Virginia to Amend the Deadline to Respond to 40 MOTION by Plaintiffs for Summary Judgment to 2/7/2014 or seven days after Court order on Motions to Dismiss, whichever is later (Tinney, John)
55 REPLY by State of West Virginia to 54 Partial Opposition to Motion to Amend. (Warren, Julie) (Modified on 1/27/2014 to remove link to #53 motion) (skh).
56 MEMORANDUM OPINION AND ORDER granting in part the 45 JOINT MOTION by Vera J. McCormick, Karen S. Cole to Strike 44 Notice of Supplemental Authority; the Court will consider the two exhibits attached to Plaintiffs' notice of supplemental authority but will not consider legal argument presented in the memorandum accompanying those exhibits; denying in part the 26 MOTION by Vera J. McCormick to Dismiss 8 Complaint for Declaratory Judgment and Injunctive Relief and 31 MOTION by Karen S. Cole to Dismiss 8 Complaint and reserving ruling as to abstention arising from the issue of whether the existing Defendants are sufficient to bind state authorities and all county clerks, should a ruling on the merits be made in favor of Plaintiffs; directing Plaintiffs, by 2/12/2014, to either 1) seek joinder of whatever additional parties they deem necessary to create greater certainty as to the effect of a ruling in this case, or 2) file a responsive pleading explaining why the existing Defendants in this lawsuit are sufficient to bind state authorities and all county clerks should a ruling on the merits be made in favor of Plaintiffs and why joinder of additional parties is not necessary; Defendants may file a response within seven days of Plaintiffs taking either action, and Plaintiffs may file a reply within three days of any response from Defendants; granting the 34 MOTION by State of West Virginia to Dismiss 8 Complaint and dismissing Plaintiffs' claim pertaining to West Virginia Code Section 48−2−603 (the non−recognition provision); Plaintiffs' claims as to the other portions of the marriage ban may proceed; directing that Plaintiffs may amend their Complaint by 2/12/2014; directing that Defendants shall have 14 days from entry of this Memorandum Opinion and Order to file any responses to Plaintiffs' 40 MOTION for Summary Judgment; denying as moot the 53 MOTION by State of West Virginia to Amend the Deadline to Respond to Plaintiffs' Motion for Summary Judgment. Signed by Judge Robert C. Chambers on 1/29/2014. (cc: attys; any unrepresented parties) (mkw)
57 UNOPPOSED MOTION by State of West Virginia to Extend the Page Limits for Its Initial Summary Judgment Filing (Warren, Julie)
58 ORDER granting State of West Virginia's 57 UNOPPOSED MOTION to Extend the Page Limits for Its Initial Summary Judgment Filing. Signed by Judge Robert C. Chambers on 2/6/2014. (cc: attys; any unrepresented parties) (mkw)
59 JOINT MOTION by Karen S. Cole, Vera J. McCormick to Extend the Page Limits on Their Response to Plaintiffs' Motion for Summary Judgment and Cross−Motion for Summary Judgment (Attachment: # 1 Certificate of Service)(Hall, Lee)
60 ORDER granting Karen S. Cole, Vera J. McCormick's 59 JOINT MOTION to Extend the Page Limits on Their Response to Plaintiffs' Motion for Summary Judgment and Cross−Motion for Summary Judgment. Signed by Judge Robert C. Chambers on 2/11/2014. (cc: attys; any unrepresented parties) (mkw)

Case: 3:13-cv-24068 As of: 11/05/2017 03:26 PM EST 14 of 22

02/12/2014 02/12/2014 02/12/2014
02/12/2014 02/12/2014 02/12/2014 02/12/2014 02/12/2014 02/12/2014
02/12/2014
02/12/2014
02/12/2014
02/12/2014

61 MEMORANDUM OF LAW IN RESPONSE by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock to the Court's 56 Memorandum Opinion and Order of 1/29/2014. (Tinney, John)
62 JOINT MOTION by Karen S. Cole, Vera J. McCormick for Summary Judgment (Attachments: # 1 Certificate of Service, # 2 Exhibit)(Hall, Lee)
63 JOINT MEMORANDUM by Karen S. Cole, Vera J. McCormick in support of 62 MOTION by Karen S. Cole, Vera J. McCormick for Summary Judgment and MEMORANDUM by Karen S. Cole, Vera J. McCormick in opposition to 40 MOTION by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock for Summary Judgment (Hall, Lee)
64 NOTICE OF ATTORNEY APPEARANCE by Julie Marie Blake on behalf of State of West Virginia. (Blake, Julie)
65 ANSWER TO 8 COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF by State of West Virginia.(Lin, Elbert)
66 CROSS MOTION by State of West Virginia for Summary Judgment and OPPOSITION by State of West Virginia to 40 MOTION by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock for Summary Judgment and Indexed Exhibits (Lin, Elbert) (Modified on 2/13/2014 to add link to #40 motion) (skh).
67 MEMORANDUM by State of West Virginia in opposition to 40 MOTION by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock for Summary Judgment (Lin, Elbert)
68 MEMORANDUM by State of West Virginia in support of 66 CROSS MOTION by State of West Virginia for Summary Judgment and 67 Memorandum In Opposition to Plaintiffs' Motion for Summary Judgment (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Lin, Elbert)
69 EXHIBITS 6−10 by State of West Virginia in support of 66 CROSS MOTION by State of West Virginia for Summary Judgment and 67 Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment. (Attachments: # 1 Exhibit 6, # 2 Exhibit 7, # 3 Exhibit 8, # 4 Exhibit 9, # 5 Exhibit 10)(Lin, Elbert) (Modified on 2/13/2014 to remove memorandum supporting/opposing cross motions for summary judgment as a duplicate of the memorandum filed at entry #68) (skh).
70 EXHIBITS 11−15 by State of West Virginia in support of 66 CROSS MOTION by State of West Virginia for Summary Judgment and 67 Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment. (Attachments: # 1 Exhibit 11, # 2 Exhibit 12, # 3 Exhibit 13, # 4 Exhibit 14, # 5 Exhibit 15)(Lin, Elbert) (Modified on 2/13/2014 to remove memorandum supporting/opposing cross motions for summary judgment as a duplicate of the memorandum filed at entry #68 and to remove link to #68 memorandum) (skh).
71 EXHIBITS 16−18 by State of West Virginia in support of 66 CROSS MOTION by State of West Virginia for Summary Judgment and 67 Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment. (Attachments: # 1 Exhibit 16, # 2 Exhibit 17, # 3 Exhibit 18)(Blake, Julie) (Modified on 2/13/2014 to remove memorandum supporting/opposing cross motions for summary judgment as a duplicate of the memorandum filed at entry #68) (skh).
72 EXHIBIT 19 by State of West Virginia in support of 66 CROSS MOTION by State of West Virginia for Summary Judgment and 67 Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment.(Blake, Julie) (Modified on 2/13/2014 to remove and replace incorrect exhibit and to remove cross motion for summary judgment/opposition to plaintiffs' motion for summary judgment as a duplicate of the document filed at entry #66) (skh).
73 EXHIBIT 20 by State of West Virginia in support of 66 CROSS MOTION by State of West Virginia for Summary Judgment and 67 Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment (Blake, Julie) (Entered: 02/13/2014)

Case: 3:13-cv-24068 As of: 11/05/2017 03:26 PM EST 15 of 22

02/12/2014 02/13/2014 02/13/2014 02/13/2014 02/13/2014 02/13/2014 02/13/2014 02/13/2014
02/13/2014
02/13/2014 02/14/2014 02/19/2014 02/19/2014

74 EXHIBIT 21 by State of West Virginia in support of 66 CROSS MOTION by State of West Virginia for Summary Judgment and 67 Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment. (Lin, Elbert) (Modified on 2/13/2014 to remove memorandum supporting/opposing cross motions for summary judgment as a duplicate of the memorandum filed at entry #68) (skh). (Entered: 02/13/2014)
75 EXHIBIT 26 by State of West Virginia in support of 66 CROSS MOTION by State of West Virginia for Summary Judgment and 67 Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment. (Attachment: # 1 Exhibit 27)(Lin, Elbert) (Modified on 2/13/2014 to remove link to #68 memorandum) (skh).
76 EXHIBIT 28 by State of West Virginia in support of 66 CROSS MOTION by State of West Virginia for Summary Judgment and 67 Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment. (Lin, Elbert)
77 EXHIBIT 31 by State of West Virginia in support of 66 CROSS MOTION by State of West Virginia for Summary Judgment and 67 Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment. (Attachments: # 1 Exhibit 32, # 2 Exhibit 33)(Lin, Elbert)
78 EXHIBIT 34 by State of West Virginia in support of 66 CROSS MOTION by State of West Virginia for Summary Judgment and 67 Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment. (Attachments: # 1 Exhibit 35, # 2 Exhibit 36)(Lin, Elbert)
79 EXHIBIT 37 by State of West Virginia in support of 66 CROSS MOTION by State of West Virginia for Summary Judgment and 67 Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment. (Attachments: # 1 Exhibit 38, # 2 Exhibit 39, # 3 Exhibit 40)(Lin, Elbert)
80 EXHIBIT 41 by State of West Virginia in support of 66 CROSS MOTION by State of West Virginia for Summary Judgment and 67 Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment. (Attachments: # 1 Exhibit 42, # 2 Exhibit 43, # 3 Exhibit 44)(Lin, Elbert)
NOTICE OF DOCKET CORRECTION re: 69 , 70 , 71 , 74 and 75 Exhibits by State of West Virginia in support of #66 Cross Motion for Summary Judgment and #67 Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment. ERROR: Memorandum supporting/opposing cross motions for summary judgment attached. CORRECTION: Memorandum removed as a duplicate of the memorandum filed at entry #68. (skh)
NOTICE OF DOCKET CORRECTION re: 72 Exhibit 19 by State of West Virginia in support of Cross Motion by State of West Virginia for Summary Judgment and Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment. ERROR: Incorrect exhibit attached and cross motion for summary judgment/opposition to plaintiffs' motion for summary judgment attached. CORRECTION: Incorrect exhibit removed and replaced with correct exhibit and cross motion removed as a duplicate of the document filed at entry #66. (skh)
81 EXHIBIT 22 by State of West Virginia in support of 66 CROSS MOTION by State of West Virginia for Summary Judgment and 67 Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment. (Attachments: # 1 Exhibit 23, # 2 Exhibit 24, # 3 Exhibit 25, # 4 Exhibit 29, # 5 Exhibit 30)(Lin, Elbert)
82 MOTION by The Family Policy Council of West Virginia for Leave to File Amicus Curiae Brief in Support of Intervenor Defendant's Motion for Summary Judgment, with proposed document attached (Attachment: # 1 Proposed Brief of Amicus Curiae)(Dys, Jeremiah)
83 UNOPPOSED MOTION by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock to Consolidate Reply Memoranda and to Extend the Page Limitation and Filing Deadline (Tinney, John)
84 JOINT RESPONSE by Vera J. McCormick, Karen S. Cole to Plaintiffs' 61 Memorandum of Law in Response to Court's Order of 1/29/2014 (Bailey, Charles) (Modified on 2/19/2014 to add party filer) (skh).

Case: 3:13-cv-24068 As of: 11/05/2017 03:26 PM EST 16 of 22

02/19/2014 02/19/2014 02/20/2014 02/24/2014
02/25/2014
02/28/2014 03/03/2014
03/03/2014 03/03/2014 03/04/2014 03/04/2014 03/12/2014 03/13/2014

85 MOTION by State of West Virginia to Dismiss 8 Complaint for Declaratory Judgment for Lack of Subject−Matter Jurisdiction Due to Failure to Join the Proper Defendants (Lin, Elbert)
86 RESPONSE by State of West Virginia in opposition to Plaintiffs' 2/12/2014 61 Memorandum of Law in Response to the Court's Order and MEMORANDUM by State of West Virginia in support of 85 MOTION by State of West Virginia to Dismiss 8 Complaint for Declaratory Judgment for Lack of Subject−Matter Jurisdiction Due to Failure to Join the Proper Defendants (Lin, Elbert)
87 ORDER granting Plaintiffs' 83 UNOPPOSED MOTION to consolidate reply memoranda and to extend the page limitation and filing deadline. Signed by Judge Robert C. Chambers on 2/20/2014. (cc: attys; any unrepresented parties) (skm)
88 REPLY MEMORANDUM by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock Responding to the Court's 56 Order of 1/29 and OPPOSITION to 85 MOTION by State of West Virginia to Dismiss 8 Complaint for Declaratory Judgment for Lack of Subject−Matter Jurisdiction Due to Failure to Join the Proper Defendants (Tinney, John) (Modified on 2/24/2014 to add link to #85 motion) (skh).
89 COMBINED REPLY by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock to 63 Memorandum In Opposition, 66 Memorandum In Opposition, 67 Memorandum In Opposition and OPPOSITION by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock to 62 JOINT MOTION by Karen S. Cole, Vera J. McCormick for Summary Judgment and 66 CROSS MOTION by State of West Virginia for Summary Judgment (Taylor, Camilla) (Modified on 2/26/2014 to correct links) (skh).
90 UNOPPOSED JOINT MOTION by Karen S. Cole, Vera J. McCormick, State of West Virginia to Amend the Deadline to Reply to Plaintiffs' 89 Opposition to Defendants' Cross−Motions for Summary Judgment to March 14, 2014 (Attachment: # 1 Certificate of Service)(Hall, Lee) (Modified on 2/28/2014 to add link to #89 opposition) (skh).
91 ORDER granting 90 MOTION for Extension of Time to File Reply re: 90 UNOPPOSED JOINT MOTION by Karen S. Cole, Vera J. McCormick, State of West Virginia to Amend the Deadline to Reply to Plaintiffs' 89 Opposition to Defendants' Cross−Motions for Summary Judgment to March 14, 2014. Reply due by 3/14/2014. Signed by Judge Robert C. Chambers on 3/3/2014. (cc: attys; any unrepresented party) (skm)
92 REPLY by State of West Virginia to 88 Response in Opposition. (Lin, Elbert) (Modified on 3/3/2014 to remove link to #85 motion) (skh).
93 UNOPPOSED MOTION by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock to Submit Notice of Supplemental Authority, with proposed document attached (Attachment: # 1 Supplement Relating to DE 56, 31, 26, 85, 40, 66, 62, # 2 Exhibit A − DeLeon opinion)(Taylor, Camilla)
94 ORDER granting 93 UNOPPOSED MOTION to submit notice of supplemental authority; directing the Clerk to file Plaintiffs' notice and the accompanying exhibit. Signed by Judge Robert C. Chambers on 3/4/2014. (cc: attys; any unrepresented party) (skm)
95 NOTICE OF SUPPLEMENTAL AUTHORITY by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock. (Attachment: # 1 Exhibit A − De Leon v. Perry Order) (skm)
96 JOINT MOTION by Karen S. Cole, Vera J. McCormick, State of West Virginia to Extend the Page Limits for Joint Reply Briefs Supporting the State of West Virginia and Karen S. Cole and Vera McCormick's Motions for Summary Judgment (Blake, Julie)
97 ORDER granting State of West Virginia and Defendants Karen S. Cole and Vera J. McCormick's 96 JOINT MOTION to extend the page limits for their joint reply briefs.

Case: 3:13-cv-24068 As of: 11/05/2017 03:26 PM EST 17 of 22

03/13/2014 03/13/2014 03/14/2014 03/14/2014 03/17/2014
03/24/2014
03/25/2014 03/25/2014 03/27/2014 04/01/2014 04/01/2014 04/15/2014
04/15/2014

Signed by Judge Robert C. Chambers on 3/12/2014. (cc: attys; any unrepresented parties) (skm)
98 ORDER granting Family Policy Council of West Virginia's 82 MOTION for Leave to File an Amicus Curiae Brief; directing the Clerk to file the proposed brief and directing the parties to file any response to the brief by 3/27/2014. Signed by Judge Robert C. Chambers on 3/13/2014. (cc: attys; any unrepresented parties) (mkw)
99 AMICUS CURIAE BRIEF by The Family Policy Council of West Virginia in support of 66 CROSS MOTION by State of West Virginia for Summary Judgment. (mkw)
100 REPLY by Karen S. Cole, Vera J. McCormick to 89 Brief In Opposition. (Attachment: # 1 Certificate of Service)(Walling, Sarah)
101 JOINT REPLY by Karen S. Cole, Vera J. McCormick, State of West Virginia to 89 Brief In Opposition. (Lin, Elbert)
102 SECOND NOTICE OF SUPPLMENTAL AUTHORITY by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock re: 56 Order, 40 MOTION by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock for Summary Judgment, 62 JOINT MOTION by Karen S. Cole, Vera J. McCormick for Summary Judgment, 66 CROSS MOTION by State of West Virginia for Summary Judgment, 85 MOTION by State of West Virginia to Dismiss 8 Complaint for Declaratory Judgment for Lack of Subject−Matter Jurisdiction Due to Failure to Join the Proper Defendants (Attachment: # 1 Exhibit A)(Littrell, Elizabeth)
103 UNOPPOSED MOTION by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock to Submit Third Notice of Supplemental Authority, with proposed document attached (Attachments: # 1 Third Notice of Supplemental Authority Relating to DE 56, 31, 26, 85, 40, 66, 62, # 2 Exhibit − DeBoer Opinion)(Taylor, Camilla)
104 ORDER granting Plaintiffs' 103 UNOPPOSED MOTION to Submit Third Notice of Supplemental Authority and directing the Clerk to file the notice of supplemental authority and accompanying exhibit. Signed by Judge Robert C. Chambers on 3/25/2014. (cc: attys; any unrepresented parties) (mkw)
105 THIRD NOTICE OF SUPPLEMENTAL AUTHORITY by Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock. (Attachment: # 1 Exhibit − DeBoer Opinion) (mkw)
106 UNOPPOSED MOTION by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock to Submit Fourth Notice of Supplemental Authority, with proposed document attached (Attachment: # 1 Exhibit A − Wolf − opinion and order)(Taylor, Camilla)
107 ORDER granting Plaintiffs' 106 UNOPPOSED MOTION to Submit Fourth Notice of Supplemental Authority; directing the Clerk to file the notice of supplemental authority and accompanying exhibit. Signed by Judge Robert C. Chambers on 4/1/2014. (cc: attys; any unrepresented parties) (mkw)
108 FOURTH NOTICE OF SUPPLEMENTAL AUTHORITY by Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock. (Attachment: # 1 Exhibit A − Wolf Opinion) (mkw)
109 UNOPPOSED MOTION by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock to Submit Fifth Notice of Supplemental Authority, with proposed document attached (Attachments: # 1 Fifth Notice of Supplemental Authority relating to DE 56, 31, 26, 85, 40, 66, 62, # 2 Exhibit A − Henry v. Himes decision)(Taylor, Camilla)
110 UNOPPOSED MOTION by State of West Virginia to Submit Notice of Supplemental Authority (Attachments: # 1 State of West Virginia's Notice of Supplemental Authority, # 2 Exhibit A − Common Cause, et. al. v. Biden, et. al.)(Warren, Julie)

Case: 3:13-cv-24068 As of: 11/05/2017 03:26 PM EST 18 of 22

04/16/2014 04/16/2014 04/16/2014 04/16/2014 04/25/2014
04/28/2014 04/28/2014 05/16/2014 05/16/2014 05/20/2014 05/20/2014 05/23/2014 05/27/2014 05/27/2014 06/10/2014

111 ORDER granting Plaintiffs' 109 UNOPPOSED MOTION to Submit Notice of Supplemental Authority; directing the Clerk to file the notice of supplemental authority and accompanying exhibit. Signed by Judge Robert C. Chambers on 4/16/2014. (cc: attys; any unrepresented parties) (mkw)
112 ORDER granting 110 UNOPPOSED MOTION by State of West Virginia to Submit Notice of Supplemental Authority; directing the Clerk to file the notice of supplemental authority and accompanying exhibit. Signed by Judge Robert C. Chambers on 4/16/2014. (cc: attys; any unrepresented parties) (mkw)
113 FIFTH NOTICE OF SUPPLEMENTAL AUTHORITY by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock. (Attachment: # 1 Exhibit A − Henry v. Himes decision) (mkw)
114 NOTICE OF SUPPLEMENTAL AUTHORITY by State of West Virginia. (Attachment: # 1 Exhibit A − Common Cause et al v. Biden et al) (mkw)
115 MOTION by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock to Submit Sixth Notice of Supplemental Authority, with proposed document attached (Attachments: # 1 Sixth Notice of Supplemental Authority, # 2 Exhibit A − Opinion − Baskin v. Bogan)(Taylor, Camilla)
116 ORDER granting Plaintiffs' 115 MOTION to Submit Sixth Notice of Supplemental Authority and directing the Clerk to file the notice of supplemental authority and accompanying exhibit. Signed by Judge Robert C. Chambers on 4/28/2014. (cc: attys; any unrepresented parties) (mkw)
117 SIXTH NOTICE OF SUPPLEMENTAL AUTHORITY by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock. (Attachment: # 1 Exhibit A − Opinion − Baskin v. Bogan) (mkw)
118 MOTION by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock to Submit Seventh Notice of Supplemental Authority, with proposed document attached (Attachment: # 1 Seventh Notice of Supplemental Authority)(Taylor, Camilla)
119 CONSENT by Karen S. Cole to 118 MOTION by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock to Submit Seventh Notice of Supplemental Authority. (Hall, Lee)
120 ORDER granting Plaintiffs' 118 MOTION to Submit Seventh Notice of Supplemental Authority and directing the Clerk to file the notice of supplemental authority and accompanying exhibits. Signed by Judge Robert C. Chambers on 5/20/2014. (cc: attys; any unrepresented parties) (mkw)
121 SEVENTH NOTICE OF SUPPLEMENTAL AUTHORITY by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock. (Attachments: # 1 Exhibits A and B) (mkw)
122 MOTION by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock to Submit Eighth Notice of Supplemental Authority,with proposed document attached (Attachments: # 1 Eighth Notice of Supplemental Authority, # 2 Exhibit A, # 3 Exhibit B)(Loewy, Karen)
123 ORDER granting Plaintiffs' 122 MOTION to Submit Eighth Notice of Supplemental Authority and directing the Clerk to file the notice of supplemental authority and accompanying exhibits. Signed by Judge Robert C. Chambers on 5/27/2014. (cc: attys; any unrepresented parties) (mkw)
124 EIGHTH NOTICE OF SUPPLEMENTAL AUTHORITY by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (mkw)
125 ORDER directing that the instant case be STAYED pending a decision from the Fourth Circuit in Bostic v. Schaefer. Signed by Judge Robert C. Chambers on 6/10/2014. (cc: attys; any unrepresented parties) (mkw)

Case: 3:13-cv-24068 As of: 11/05/2017 03:26 PM EST 19 of 22

07/29/2014 07/30/2014
07/30/2014 09/12/2014
09/16/2014 09/16/2014 10/06/2014 10/06/2014 10/07/2014
10/20/2014 10/20/2014 10/21/2014 10/21/2014
10/23/2014

126 MOTION by State of West Virginia to Continue Merits Stay re: 125 Order and to Calendar Oral Argument on Threshold Issues (Lin, Elbert).
127 BRIEF by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock in opposition to 126 MOTION by State of West Virginia to Continue Merits Stay re: 125 Order and to Calendar Oral Argument on Threshold Issues and CROSS−MOTION by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock to Lift Stay and Enter Judgment (Tinney, John) (Modified on 7/30/2014 to convert event to a motion) (skh).
128 RESPONSE by State of West Virginia in opposition to 127 CROSS−MOTION by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock to Lift Stay and Enter Judgment (Lin, Elbert)
129 MOTION by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock to Submit Ninth Notice of Supplemental Authority, with proposed document attached (Attachments: # 1 Exhibit A − Ninth Notice of Supplemental Authority, # 2 Exhibit B − Opinion − Baskin v. Bogan (7th Circuit), # 3 Exhibit C − Opinion − Robicheaux v. Caldwell, # 4 Exhibit D − Opinion − Brenner v. Scott, # 5 Exhibit E − Opinion − In re Estate of Bangor)(Taylor, Camilla)
130 ORDER granting 129 MOTION for Leave to File Ninth Supplemental Authority and accompanying exhibits; the Court sua sponte Orders that the instant case be Stayed pending a decision from the Supreme Court. Signed by Judge Robert C. Chambers on 9/16/2014. (cc: attys; any unrepresented party) (skm)
CASE STAYED pursuant to Order dated 09/16/2014. (skm)
131 MOTION by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock to Lift Stay and Enter Judgment (Attachment: # 1 Exhibit A)(Tinney, John).
132 AMENDED MOTION by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock to Lift Stay and Enter Judgment (Attachment: # 1 Exhibit A)(Tinney, John).
133 ORDER re: 132 AMENDED MOTION to Lift Stay and Enter Judgment; lifting the stay in this action; directing Defendants and Intervenor Defendant to respond to Plaintiffs' motion by 10/21/2014; Defendants and Intervenor Defendant should include in their response any additional objections they may have to the relief sought; any reply shall be filed within 7 days of the filing of the response. Signed by Judge Robert C. Chambers on 10/7/2014. (cc: attys; any unrepresented parties) (mkw)
134 RESPONSE by State of West Virginia in opposition to 132 AMENDED MOTION by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock to Lift Stay and Enter Judgment (Lin, Elbert)
135 JOINDER by Vera J. McCormick in State of West Virginia's 134 Response in Opposition. (Bailey, Charles) (Modified on 10/20/2014 to correct link to #134 response) (skh).
136 RESPONSE by Karen S. Cole in opposition to 132 AMENDED MOTION by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock to Lift Stay and Enter Judgment (Hall, Lee)
137 JOINDER by Vera J. McCormick in 136 RESPONSE by Karen S. Cole in opposition to 132 AMENDED MOTION by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock to Lift Stay and Enter Judgment (Bailey, Charles) (Modified on 10/21/2014 to correct link to #136 response)(skh).
138 REPLY by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock to 134 Response In Opposition, 135 Joinder in Response In Opposition, 136 Response In Opposition, 137

Case: 3:13-cv-24068 As of: 11/05/2017 03:26 PM EST 20 of 22

11/07/2014
11/07/2014
11/07/2014 11/17/2014 11/18/2014 11/18/2014 12/02/2014 12/02/2014 12/05/2014 12/16/2014

Joinder in Response In Opposition. (Taylor, Camilla)
139 MEMORANDUM OPINION AND ORDER granting Plaintiff's 40 MOTION for Summary Judgment; denying Defendant Vera J. McCormick's 26 MOTION to Dismiss, Defendant Karen S. Cole's 31 MOTION to Dismiss, Defendants' 62 JOINT MOTION for Summary Judgment, the State of West Virginia's 66 CROSS−MOTION for Summary Judgment and the State of West Virginia's 85 MOTION to Dismiss; denying in part and denying as moot in part The State of West Virginia's 126 MOTION to Continue Merits Stay and to Calendar Oral Argument on Threshold Issues; denying as moot Plaintiff's 127 CROSS−MOTION to Lift Stay and Enter Judgment; granting Plaintiff's 131 MOTION to Lift Stay and Enter Judgment and 132 AMENDED MOTION to Lift Stay and Enter Judgment. Signed by Judge Robert C. Chambers on 11/7/2014. (cc: attys; any unrepresented parties) (mkw)
140 JUDGMENT ORDER granting Plaintiff's 40 MOTION for Summary Judgment; denying Defendant Vera J. McCormick's 26 MOTION to Dismiss, Defendant Karen S. Cole's 31 MOTION to Dismiss, Defendants' 62 JOINT MOTION for Summary Judgment, the State of West Virginia's 66 CROSS−MOTION for Summary Judgment and the State of West Virginia's 85 MOTION to Dismiss; denying in part and denying as moot in part The State of West Virginia's 126 MOTION to Continue Merits Stay and to Calendar Oral Argument on Threshold Issues; denying as moot Plaintiff's 127 CROSS−MOTION to Lift Stay and Enter Judgment; granting Plaintiff's 131 MOTION to Lift Stay and Enter Judgment and 132 AMENDED MOTION to Lift Stay and Enter Judgment; further directing that this case be dismissed and stricken from the docket of this Court. Signed by Judge Robert C. Chambers on 11/7/2014. (cc: attys; any unrepresented parties) (mkw)
141 TRANSMITTED CERTIFIED COPY of 140 Judgment Order to attorneys and any unrepresented parties. (mkw)
142 MOTION by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock to Extend Time to File for Attorneys' Fees and Costs to December 2, 2014 (Taylor, Camilla)
143 AMENDED UNOPPOSED MOTION by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock to Extend Time to File for Attorneys' Fees and Costs to December 2, 2014 (Taylor, Camilla)
144 ORDER granting 142 and 143 MOTION for Extension of Time to File for Attorney Fees and Costs; the Court extends the deadline for filing the petition for fees and costs to 12/02/2014. Signed by Judge Robert C. Chambers on 11/18/2014. (cc: attys; any unrepresented party) (skm)
145 MOTION by Sarah Elizabeth Adkins, Jane Louise Fenton, A.S.M., William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock for Attorneys' Fees, Expenses and Costs (Tinney, John) (Modified on 12/3/2014 to add party filer)(skh).
146 MEMORANDUM by Sarah Elizabeth Adkins, Jane Louise Fenton, A.S.M., William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock in support of 145 MOTION by Sarah Elizabeth Adkins, Jane Louise Fenton, A.S.M., William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock for Attorneys' Fees, Expenses and Costs (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Tinney, John) (Modified on 12/3/2014 to add party filer)(skh).
147 UNOPPOSED JOINT MOTION by State of West Virginia, Karen S. Cole, Vera J. McCormick to Extend the Deadline to Respond to 145 MOTION by Sarah Elizabeth Adkins, Jane Louise Fenton, A.S.M., William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock for Attorneys' Fees, Expenses and Costs to January 16, 2015 (Warren, Julie) (Modified on 12/6/2014 to add party filers and to remove link to #146 memorandum) (skh).
148 ORDER granting 147 UNOPPOSED JOINT MOTION by State of West Virginia, Karen S. Cole, Vera J. McCormick to Extend the Deadline to Respond to 145 MOTION by Sarah Elizabeth Adkins, Jane Louise Fenton, A.S.M., William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock for Attorneys' Fees,

Case: 3:13-cv-24068 As of: 11/05/2017 03:26 PM EST 21 of 22

01/13/2015 01/14/2015 01/14/2015
01/16/2015 01/16/2015
01/16/2015 01/16/2015
01/26/2015
03/06/2015 04/20/2015 04/21/2015

Expenses and Costs; Response due by 1/16/2015. Signed by Judge Robert C. Chambers on 12/11/2014. (cc: attys; any unrepresented parties) (mkw)
149 MOTION by State of West Virginia to Exceed Page Limits for Response to Plaintiff's Motion for Attorney's Fees, Expenses, and Costs (Lin, Elbert)
150 JOINT MOTION by Vera J. McCormick, Karen S. Cole to Exceed Page Limits For Response To Plaintiffs' Motion For Attorneys' Fees, Expenses And Costs (Bailey, Charles) (Modified on 1/14/2015 to add party filer) (skh).
151 ORDER granting in part 149 MOTION by State of West Virginia to Exceed Page Limits for Response to Plaintiff's Motion for Attorney's Fees, Expenses, and Costs; granting 150 JOINT MOTION by Vera J. McCormick to Exceed Page Limit for Defendants Karen S. Cole And Vera J. McCormicks Motion To Exceed Page Limits For Response To Plaintiffs Motion For Attorneys Fees, Expenses And Costs; the parties are each permitted to file a response whose body is no more than 30 pages. Signed by Judge Robert C. Chambers on 1/14/2015. (cc: attys; any unrepresented parties) (mkw)
152 MOTION by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock for Extension of Time in Which to File Reply in Support of Plaintiffs' Motion for Attorneys Fees, Expenses, and Costs to 2/9/2015 (Taylor, Camilla)
153 RESPONSE by Karen S. Cole, Vera J. McCormick in opposition to 145 MOTION by Sarah Elizabeth Adkins, Jane Louise Fenton, A.S.M., William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock for Attorneys' Fees, Expenses and Costs (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Certificate of Service)(Walling, Sarah) (Modified on 1/16/2015 to remove link to #146 memorandum)(skh).
154 MOTION by West Virginia Association of County Officials for Leave to File Brief of Amicus Curiae West Virginia Association of County Officials In Support of Defendants Karen S. Cole and Vera J. McCormick's Opposition to Plaintiffs' Petition for Attorneys' Fees. (skm)
155 RESPONSE by State of West Virginia in opposition to 145 MOTION by Sarah Elizabeth Adkins, Jane Louise Fenton, A.S.M., William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock for Attorneys' Fees, Expenses and Costs (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16)(Lin, Elbert)
156 REPLY by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock to 153 Response In Opposition, 154 MOTION by West Virginia Association of County Officials for Leave to File Brief of Amicus Curiae West Virginia Association of County Officials In Support of Defendants Karen S. Cole and Vera J. McCormick's Opposition to Plaintiffs' Petition for Attorneys' Fees, 155 Response In Opposition. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Tinney, John)
157 MOTION by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock to Submit Notice of Supplemental Authority (Attachment: # 1 Notice of Supplemental Authority)(Taylor, Camilla)
158 UNOPPOSED MOTION by Karen S. Cole, Vera J. McCormick to Submit First Notice of Supplemental Authority re: 153 Response In Opposition (Attachment: # 1 Exhibit A)(Hall, Lee)
159 ORDER granting Plaintiffs' 157 MOTION to Submit Notice of Supplemental Authority and Defendants Karen S. Cole and Vera J. McCormick's 158 UNOPPOSED MOTION to Submit First Notice of Supplemental Authority. Signed by Judge Robert C. Chambers on 4/21/2015. (cc: attys; any unrepresented parties) (mkw)

Case: 3:13-cv-24068 As of: 11/05/2017 03:26 PM EST 22 of 22

04/21/2015 04/21/2015 07/16/2015

160 NOTICE OF SUPPLEMENTAL AUTHORITY by A.S.M., Sarah Elizabeth Adkins, Jane Louise Fenton, William Glavaris, Casie Jo McGee, Nancy Elizabeth Michael, Justin Murdock. (mkw)
161 FIRST NOTICE of Supplemental Authority by Karen S. Cole, Vera J. McCormick (Hall, Lee)
162 MEMORANDUM OPINION AND ORDER granting in part and denying in part Plaintiffs' 145 MOTION for Attorneys' Fees, Expenses, and Costs; denying as moot Plaintiffs' 152 MOTION for Extension of Time in Which to File Reply in Support of Motion for Attorneys' Fees, Expenses, and Costs; granting The West Virginia Association of County Officials' 154 MOTION for Leave to File Brief of Amicus Curiae. Signed by Judge Robert C. Chambers on 7/16/2015. (cc: attys; any unrepresented party) (skm)