Following a seismic political shift in Virginia's top elected offices, the new attorney general said Thursday he has decided his state’s ban on same-sex marriage is unconstitutional.
In filing a brief Thursday in federal court, Attorney General Mark Herring officially joined a lawsuit challenging the state Constitution’s voter-approved ban on same-sex marriage. The Democrat campaigned in part on marriage equality but won by only 907 votes. The lawsuits in Virginia claim the state’s ban violates the U.S. Constitution’s equal protection and due process clauses. Federal judges recently struck down gay marriage bans in Utah and Oklahoma although the U.S. Supreme Court unanimously agreed Utah’s law should stay in effect while the case there moves forward.
It is not the first time an attorney general has decided to stop defending a state's same-sex marriage ban. In Pennsylvania, Attorney General Kathleen Kane said last year that she would stop defending that state's gay marriage ban, also calling it unconstitutional. Pennsylvania hired an outside law firm to represent the state. Since Herring has said his office will outright argue against the law, it’s not clear whether Virginia’s ban will have any supporter, even though Virginia voters approved it in 2006.
Herring’s decision drew divided responses—celebration from attorneys challenging the ban and condemnation from traditional marriage proponents. Tom Shuttleworth, representing the couples challenging the ban in Norfolk, praised Herring’s position “on the basic human right of being able to marry the person of your choice.” But the conservative Family Foundation of Virginia called the development “disappointing and frightening.”
Herring's announcement comes less than a month after Democrats who swept the state’s top three offices took office. Democrats are still substantially outnumbered in the legislature, but with Terry McAuliffe’s election as governor and Herring as attorney general, Virginia made a hairpin turn away from the socially conservative officeholders they succeeded. Former Attorney General Ken Cuccinelli, a Republican, was vocally pro-life and opposed same-sex marriage.
Gay marriage activists say the issue resonates in Virginia because of its history. In 1967, the U.S. Supreme Court overturned laws against interracial marriage, a decision driven at least partially by Virginia’s conviction of an interracial couple. Herring told NPR he wants Virginia to be on the “right side of history” this time. Herring voted for the state’s constitutional amendment banning gay marriage in 2006, but he told NPR he soon saw the ban was “painful for a lot of people.” He described a personal journey in which he talked to many Virginians, and it was partly his college-age sons who helped him “see a different perspective.”
Heading up the Virginia case is the American Foundation for Equal Rights, which was behind the effort to overturn California's same-sex marriage ban, Prop 8. The plaintiffs are a Virginia couple who want to marry and a California couple living in Virginia who married in California in 2008. Virginia law won’t allow the California woman to adopt her partner’s 15-year-old daughter.