Same-Sex Marriage in West Virginia: What's Next?

Same-Sex Marriage in West Virginia: What's Next?

JURIST Guest Columnist Kendra Huard Fershee, of West Virginia University College at Law, discusses the legal and social issues within West Virginia’s struggle to uphold same sex marriage …

Same-sex marriage supporters in West Virginia—and several other states—went to bed on Sunday night, October 5, 2014, not knowing that they should be as excited as Cindy Lou Who on Christmas Eve. The next morning, those supporters awoke to news that the US Supreme Court had cleared the way for some states to begin granting marriage certificates to same-sex partners seeking to marry. The court denied certiorari to several applications for appeal of Circuit Court decisions to strike state laws against same-sex marriage as unconstitutional. That denial of certiorari, while legally the equivalent of the rejection of a dinner invitation, set the wheels in motion to lift stays on several judicial opinions that struck bans on same-sex marriage from Circuit Courts and District Courts scattered throughout the country. And without missing a beat, the US Court of Appeals for the Ninth Circuit followed the Supreme Court’s denial of certiorari almost immediately with a decision to uphold a lower court decision to strike a ban on same-sex marriage in Idaho. And so it was, in the span of about a week, same-sex marriage became—at least in theory—legal in 13 more states than it had been on October 5, 2014.

The legal theory that made same-sex marriage legal in so many states at one time is stare decisis—the theory of binding legal precedent—which means that courts falling under the jurisdiction of a higher court must follow the higher court’s authority. So, because one of the decisions the Supreme Court decided not to consider on appeal was the US Court of Appeals for the Fourth Circuit’s decision to uphold a lower court’s ruling that a ban on same-sex marriage as unconstitutional; the Fourth Circuit’s decision became a final decision and took effect. And because it took effect, the courts that fall under the jurisdiction of the Fourth Circuit have to follow suit. Conceptually, this is not too difficult to understand, but practically, it can be a lot more complicated. Those additional complications do not necessarily get in the way of same-sex marriage happening eventually, but they can delay the effective date, which has to be beyond frustrating to those same-sex couples who had been fighting for the right to marry in the states sitting in appellate jurisdictions that had ruled in their favor.

A great example of the potential for a complicating delay in a state can be illustrated by looking at what happened in West Virginia after the Supreme Court decided not to decide those same-sex marriage cases last October. West Virginia is in the Fourth Circuit, so it sits in a jurisdiction where an appellate court has decided to strike a state’s ban on same-sex marriage. But the Fourth Circuit reviewed Virginia’s ban on same-sex marriage, not West Virginia’s ban. So, in theory, West Virginia could argue that its ban is somehow constitutional, even though the Fourth Circuit said Virginia’s ban was not. If nothing else, a judge willing to entertain that argument could have slowed the beginning of same-sex marriage in West Virginia, because county clerks charged with issuing marriage licenses could refuse them to same-sex couples until forced to do so by the appropriate authority. That did not happen, but the possibility was real that a court could have held that West Virginia’s statute banning same-sex marriage is different enough from Virginia’s that a court could hold that West Virginia’s ban is constitutional.

That never came to pass, however, because a West Virginia federal judge made it abundantly clear that the pending case challenging the same-sex marriage ban in West Virginia had come to an end, and that the plaintiffs had been victorious. In McGee v. Cole, [PDF] Judge Robert C. Chambers lifted a stay on that case that held it in limbo on the anticipation of a ruling from the Supreme Court regarding the Fourth Circuit’s decision to strike the Virginia ban on same-sex marriage the Bostic v. Schaeffer [PDF]. When the Supreme Court declined to review Bostic on October 6, 2014, the ruling in Bostic took effect and the same-sex marriage ban in Virginia fell. The question for West Virginians became when the stay that Chambers had issued in McGee would be lifted, allowing the case to move ahead on its merits. That decision came on October 7, 2014, when Chambers lifted the stay and asked the defendants to respond, within a couple of weeks, to the plaintiff’s motion for summary judgment, which is where the case was frozen until the stay was lifted.

After receiving the defendants’ reply to the motion for summary judgment, Chambers wasted no time in granting the plaintiff’s motion. In doing so, Chambers made clear that West Virginia’s ban on same-sex marriage can no longer stand. The Fourth Circuit struck Virginia’s ban as unconstitutional, and the Supreme Court refused to weigh in at that time. Any further legal wrangling over same-sex marriage in West Virginia would have to end, and the wedding ceremonies that began after October 6, 2014 could continue. The only thing that could change things back to the way they were would be a ruling from the Supreme Court that same-sex marriage bans in the states are constitutional, and that did not seem likely to happen soon because the court had so recently decided not to hear appeals on the issue.

And then, on January 16, 2015, the Supreme Court announced it will hear an appeal coming out of the US Court of Appeals for the Sixth Circuit, wherein the appellate court decided to uphold a ban on same-sex marriage. This is widely regarded as good news for supporters of same-sex marriage, because it is an opportunity for the court to strike bans on same-sex marriage in all of the US. If the Supreme Court decides to uphold the Sixth Circuit’s decision, however, it could create chaos in states, like West Virginia, that have permitted same-sex marriages to proceed for the last several months on the basis of the Supreme Court’s refusal to take the appeals sought last October. Stay tuned!

Kendra Huard Fershee is an Associate Professor of Law and West Virginia University College of Law, where she teaches Family Law and related courses, Professional Responsibility, and Civil Procedure. Professor Fershee’s scholarly interests include parenting rights for gay and lesbians and generally, and access to education for pregnant and parenting teens.

Suggested citation:Kendra Huard Fershee, Same-Sex Marriage in West Virginia: What’s Next?, JURIST – Academic Commentary, Jan. 26, 2015,

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