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to Section One | to Arts & Entertainment
posted Friday, January 24 2014 - Volume 42 Issue 04
Virginia Attorney General rules state marriage ban unconstitutional - Will not defend it in pending suits
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Virginia Attorney General rules state marriage ban unconstitutional - Will not defend it in pending suits

by Mike Andrew - SGN Staff Writer

Virginia Attorney General Mark Herring announced on January 23 he had concluded that his state's ban on same-sex marriage was unconstitutional. Consequently, he said, he will not defend the law in two lawsuits challenging it.

'After thorough legal review, I have now concluded that Virginia's ban on marriage between same sex couples violates the Fourteenth Amendment of the U.S. Constitution on two grounds: marriage is a fundamental right being denied to some Virginians, and the ban unlawfully discriminates on the basis of both sexual orientation and gender,' Herring wrote in a court filing.

'As attorney general I cannot and will not defend laws that violate Virginians' rights,' Herring explained later in an NPR interview.

'That's what I have pledged over and over to do, is to put the law and put Virginians first. ... It's about what the law requires here, and we have concluded, I have concluded, that the law here is unconstitutional, and I think the Supreme Court ... would find the law unconstitutional.'

Herring, a Democrat, was elected in November by a slim 907-vote margin over his Republican opponent, and took office in January. His predecessor in the Attorney General's office, right-wing Republican Ken Cuccinelli, lost his race for Governor to Terry McAuliffe. Cuccinelli promised to defend Virginia's marriage law in court if he was elected Governor.

Herring's office filed papers announcing the Attorney General's new position in the pending marriage lawsuit Bostic v. Rainey, in which AFER (Americans for Equal Rights) attorneys Ted Olson and David Boies are counsel. Olson and Boies successfully challenged the constitutionality of California's Prop 8, from 2009 through the U.S. Supreme Court decision in 2013.

A similar filing in the second lawsuit, Harris v. McDonnell, is expected soon. That suit was filed last year by the American Civil Liberties Union, the ACLU of Virginia, Lambda Legal, and the law firm Jenner and Block.

As a state senator, Herring had voted against marriage equality, but he told NPR's Morning Edition that he was sorry he did so.

'I had voted against marriage equality eight years ago, back in 2006, even though at the time I was speaking out against discrimination and ways to end discrimination, and I was wrong for not applying it to marriage,' he said. 'I saw very soon after that how that hurt a lot of people and it was very painful for a lot of people.'

Herring said he spoke with constituents, co-workers and his family and has 'come to see the issue very differently now.' His children also played a role in his changing views, he said.

'They were instructive about the relationships that people have, and they were helpful in getting me to see a different perspective,' Herring said. 'They pressed me for the position I had taken and made me continue to question it, and I just came to the conclusion that it was the right thing to do.'

Attorneys for plaintiffs in Virginia's pending marriage suits greeted Herring's filing with enthusiasm.

'This is a great day for the Commonwealth of Virginia,' said Bostic v. Rainey attorney Ted Olson.

'Virginia's marriage laws are needlessly mean-spirited and cause harsh and gratuitous pain and humiliation to gay and lesbian Virginians and their families. Attorney General Herring's actions today have brought Virginia that much closer to the quintessential American ideals of equality under the law and the freedom to pursue happiness. We are grateful for his leadership and look forward to working with him to strike down Virginia's odious marriage ban.'

The ACLU and Lambda Legal, who are representing plaintiffs in Harris v. McDonnell, also hailed Herring's decision in a joint press statement.

'Today's actions by Virginia's chief legal officer continue America's evolution on this issue. More and more Americans are embracing the idea that all loving and committed couples should have access to the protections that only come with marriage,' said Amanda Goad, staff attorney with the ACLU Lesbian Gay Bisexual and Transgender Project. 'With the attorney general on our side, we hope that we can soon count Virginia among the 17 other states where same-sex couples have the freedom to marry.'

'It is a critical and important development when the attorney general - the keeper of the federal and state constitution in the commonwealth - joins us in arguing that barring same-sex couples from marriage is clearly unconstitutional,' said Greg Nevins, counsel in Lambda Legal's Southern Regional Office based in Atlanta.

'We will continue to work to remove all remaining impediments so that Virginia can join the growing number of states where same-sex couples in loving, committed relationships are treated equally and can enjoy fully the benefits and responsibilities marriage provides.'

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