Attorney General Mark Herring (D-Va.)
Update: 12:15 p.m. EST
RICHMOND, Va. — In a move that could give gay marriage its first foothold in the South, Virginia’s attorney general said Thursday he concluded the state’s ban on same-sex unions is unconstitutional and he will join the fight against it.
Newly elected Democratic Attorney General Mark R. Herring said he would support gay couples who have filed lawsuits challenging the state’s ban.
“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 said.
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Herring stressed the same-sex ban will be enforced despite his challenge.
Herring’s announcement comes on the heels of court rulings in which federal judges struck down gay marriage bans in Utah and Oklahoma. H e said he announced his decision because oral arguments are scheduled next week in one of the Virginia cases challenging the state’s ban.
Currently the District of Columbia and 17 states allow gay marriage, most of them clustered in the Northeast. None of them are in the old Confederacy.
Nationwide, there are more than a dozen states in which federal lawsuits are challenging state bans on same-sex marriage. The case that is farthest along comes from Nevada, where a federal judge upheld the state ban. That case is at the San Francisco-based 9th U.S. Circuit Court of Appeals, but no argument date has yet been set.
Herring’s decision drew divided responses.
Tom Shuttleworth, representing the couples challenging the state ban, praised Herring’s position “on the basic human right of being able to marry the person of your choice.”
“It’s a nice day to be an American from Virginia,” he wrote in an email.
But the conservative Family Foundation of V irginia called the development “disappointing and frightening.”
The Republican speaker of the Virginia House of Delegates said Herring was setting a “dangerous precedent.”
“The attorney general has a constitutional and statutory obligation to enforce and defend the duly adopted laws and Constitution of Virginia,” William J. Howell said in a statement. “This is not an obligation that can be taken lightly.”
The state Republican chairman, Pat Mullins, said Herring should resign if he doesn’t want to defend state laws.
Herring’s announcement came less than two weeks after he started the job as part of Democratic sweep the top of the November ballot, changing the state’s political landscape.
With the election of Democrats Terry McAuliffe as governor and Herring as attorney general, who were elected separately, Virginia made a hairpin turn away from the socially conservative officeholders they succeeded, particularly Republican Attorney General Ken Cu ccinelli, an activist on social issues such as abortion and gay marriage.
McAuliffe issued an executive order on inauguration day prohibiting discrimination against state employees who are gay.
Virginia voters approved the same-sex marriage ban 57 percent to 43 percent in 2006. But a Quinnipiac University poll in July found that 50 percent of registered Virginia voters support same-sex marriage, while 43 percent oppose it. The survey’s margin of error was plus or minus 3.1 percentage points.
It is not the first time an attorney general has decided to stop defending their state’s gay marriage ban. In Pennsylvania, Attorney General Kathleen Kane said last year called it unconstitutional and an outside law firm was hired to represent the state in a lawsuit over the ban.
Opponents of the state’s ban say the issue resonates in Virginia in particular because of a landmark 1967 U.S. Supreme Court decision involving a Virginia couple and interracial marriage.
Mildred and Richard Loving were married in Washington, D.C., and were living in Virginia when police raided their home in 1958 and charged them with violating the state’s Racial Integrity law. They were convicted but prevailed before the Supreme Court.
“Virginia has argued on the wrong side of some of our nation’s landmark cases,” Herring said, mentioning the school desegregation case in 1954 and the 1996 case in which the state supported single-gender education at then all-male Virginia Military Institute. The Supreme Court ordered VMI to admit women or give up its state funding.
“It’s time for the Commonwealth to be on the right side of history and the right side of the law,” Herring said.
The fight in Virginia is being partially paid for by the American Foundation for Equal Rights, which was behind the effort to overturn California’s gay marriage ban.
There are two lawsuits challenging Virginia’s ban in federal court, one in Harrisonburg while the other is in Norfolk. Both Norfolk couples were legally married in California in 2008.
In that case, Timothy Bostic and Tony London, applied for a marriage license with the Norfolk Circuit Court Clerk’s office in July 2013, but their application was denied. A judge has set arguments in that case for next Thursday.
The other Norfolk plaintiffs are Carol Schall and Mary Townley. They have a daughter, whom Townley gave birth to in 1998, but Schall can’t adopt her because Virginia law doesn’t allow same-sex couples to adopt children, according to the lawsuit.
The lawsuit argues that Virginia law stigmatizes gays and lesbians, along with their children and families, because it denies them the same definition of marriage afforded to other couples.
In the state General Assembly, Democratic legislators are still widely outnumbered in the House of Delegates, but they have been emboldened by the shift away from a reliably conservative state. They took imm ediate aim at the state’s ban on gay marriage, but proposed constitutional amendments face a long road. The earliest voters could see a proposed amendment is in 2016.
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