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Attorney General Mark Herring.
Newly elected Virginia Attorney General Mark R. Herring has concluded that the state's ban on same-sex marriage is unconstitutional. On January 23, 2014, he filed a brief in federal court in Norfolk declaring that marriage is a fundamental right and that the ban is discriminatory. The brief was filed in a high-profile case brought by Theodore Olson and David Boies, who successfully litigated the demise of California's Proposition 8, which banned same-sex marriage in the golden state.
Herring's action signals what Steve Szkotak describes in an Associated Press story as "a seismic political shift in Virginia," where in November voters not only rejected Ken Cuccinelli, the conservative former Attorney General and anti-gay activist, in his quest to become Governor, but also elected moderate candidates as Governor, Lieutenant Governor, and Attorney General.>
Tellingly, Terry McAuliffe's first act as Governor was to issue an executive order prohibiting discrimination on the basis of sexual orientation in state employment.
A spokesman for Herring, Michael Kelly, said, "After a thorough legal review of the matter, Attorney General Herring has concluded that Virginia's current ban is in violation of the U.S. constitution and he will not defend it."
Virginia voters adopted the same-sex marriage ban in 2006 by a margin of 57% to 43%. However, a Quinnipiac University poll in July found that 50 percent of registered Virginia voters support same-sex marriage, while 43 percent oppose it.
As Robert Barnes reports in the Washington Post, Herring voted in favor of the marriage ban in 2006 when he was a state senator, but gradually changed his mind.
In an interview with NPR's "Morning Edition" on January 23, 2014, Herring said, "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. 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 played a role in his changing views, he said.
He added, "As attorney general I cannot and will not defend laws that violate Virginians' rights."
Contributing to Herring's decision was his mindfulness that Virginia has been on the "wrong side" of landmark legal battles involving school desegregation, interracial marriage, and single-sex education. He said that he will make the case that the commonwealth should be on the "right side of the law and history" in the battle over same-sex marriage.
He was also, no doubt, influenced, or at least bolstered, in his decision by the powerful federal district court decisions that recently struck down same-sex marriage bans in Utah and Oklahoma and that are now pending before the Tenth Circuit Court of Appeals.
Herring's refusal to defend a state's ban on same-sex marriage is not unprecedented. In 2008, then Attorney General of California Jerry Brown refused to defend Proposition 8. In 2013, Attorney General of Pennsylvania Kathleen Kane said she would not defend that state's ban.
When David Boies and Theodore B. Olson, who lead the legal team in the Norfolk case, announced their participation on September 30, 2013, they cited Virginia's history, particularly as the state from which the landmark Supreme Court decision Loving v. Virginia originated.
Olson said, "This case is about state laws that violate personal freedoms, are unnecessary government intrusions, and cause serious harm to loving gay and lesbian couples."
Boies added, "This case is about liberty. It's about the pursuit of happiness. It's about the inalienable right of every individual to marry the person who they love."
The plaintiffs in the Norfolk lawsuit, known as Bostic v. Rainey, are two couples: Timothy Bostic and Tony London, and Carol Schall and Mary Townley. Bostic and London applied for a marriage license with the Norfolk Circuit Court Clerk's office in July 2013, but their application was denied. Schall and Townley were legally married in California in 2008. They have a daughter, whom Townley gave birth to in 1998, but Schall cannot adopt her because Virginia law does not allow same-sex couples to adopt children and does not recognize their marriage.
The lawsuit argues that Virginia law stigmatizes gay men and lesbians, along with their children and families, because it denies them the same definition of marriage afforded to opposite-sex couples.
Another lawsuit challenging the marriage ban in Virginia is pending in federal court in Harrisonburg. Lambda Legal, which is leading the challenge there, issued a statement applauding Herring's decision not to defend the ban "critical," since he is "the keeper of the federal and state constitution in the commonwealth."
Herring's decision not to defend the lawsuits does not mean that the suits will lack a defense. The clerks of the circuit court in Norfolk and Prince William County are defendants in the suits and both are represented by independent counsel.
Janet Rainey, the state registrar of vital records, is also a defendant. She will join Herring in urging the courts to strike down the ban, but she will continue to enforce it until the courts rule.
The first hearing in the Norfolk case is scheduled for January 30, 2014 before Judge Arenda L. Wright Allen of the U.S. District Court for the Eastern District of Virginia.
The Attorney General's brief in Bostic v. Rainey not only announces the state's change of position, it also cites precedents in which Virginia Attorneys General, including his predecessor Ken Kuccinelli, refused to defend laws they deemed unconstitutional, and carefully makes the case against the constitutionality of Virginia's same-sex marriage ban. It may be found here.
As the video below confirms, during the campaign Herring spoke out forcefully in favor of equal rights.