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Virginia

Va. AG says gay marriage ban unconstitutional, joins fight against it

Wednesday, January 22, 2014
AP</span<Attorney General Mar Herring (D-Va.)

AP (File)
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.

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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99 more reader comments:

  1. Garrett Piersa

    Posted on Thursday, January 23, 2014 at 5:36am
  2. See there is a huge difference when Democrats get elected Vs the Republican Taliban.

    Posted on Thursday, January 23, 2014 at 5:36am
  3. Been saying that for years. I hate when I hear ppl say "both parties are the same" that just bullcrap!

    Replied on Thursday, January 23, 2014 at 5:39am
  4. Bravo!

    Posted on Thursday, January 23, 2014 at 5:37am
  5. amazing what people do when they realize they will probably loose their job over something so meaningless as same sex-marriage.. this maneuver is strictly to ensure he will win reelection

    Posted on Thursday, January 23, 2014 at 5:37am
  6. He just took office a week ago. This is not about reelection. Read the story and you won't come off sounding like such an ignorant fool.

    Replied on Thursday, January 23, 2014 at 5:40am
  7. Anthony, marriage isnt meaningless to people who are denied it..Maybe you should take note

    Replied on Thursday, January 23, 2014 at 5:49am
  8. Like “Dominos” dropping state to state to state. let me guess, I bet a close family member came out to him or he knows someone who has come out.

    Posted on Thursday, January 23, 2014 at 5:38am
  9. Wow, me and my fiance are always talking about where we can go to get married. Never thought we might be able to do it in our own state soon.

    Posted on Thursday, January 23, 2014 at 5:38am
  10. We're all hoping this will actually happen :)

    Replied on Thursday, January 23, 2014 at 3:07pm
  11. Yey!

    Posted on Thursday, January 23, 2014 at 5:38am
  12. We expected this after they voted in a pro-gay governor.

    Posted on Thursday, January 23, 2014 at 5:39am
  13. Just like pulling another block out of the Jenga tower, soon they will all come crumbling down and our right to marry will be recognized everywhere :)

    Posted on Thursday, January 23, 2014 at 5:40am
  14. I cant taste having a deep south victory. The capitol of the CONfderacy!

    Posted on Thursday, January 23, 2014 at 5:40am
  15. About time !!!

    Posted on Thursday, January 23, 2014 at 5:40am
  16. Thank you!!

    Posted on Thursday, January 23, 2014 at 5:47am
  17. EQUALITY NOW! My partner and I have been waiting for our right to marry in our Home State for a long time,looks like our dream of tying the knot together might not be to far off! :-)<3

    Posted on Thursday, January 23, 2014 at 5:48am
  18. Unconstitutional is not having equality for one and all. For we are one nation, under God, with individual and justice for all. Meaning: Respect for others,reasonable, peace coupled with fairness ”Equal” without judgement and you got it!

    Posted on Thursday, January 23, 2014 at 5:55am
  19. http://www.lgbtqnation.com/2014/01/a-gay-dads-open-letter-to-the-man-who-refused-to-eat-while-gay-couples-married/ that letter brought tears to my eyes. This Dad is a role model for human beings. Gay, bi, straight etc.

    Posted on Thursday, January 23, 2014 at 5:57am
  20. I’m Str8 but I want ya’ll.to get married if you want. I hope to.see it in all 50 states. Virginia here

    Posted on Thursday, January 23, 2014 at 5:57am
  21. You mean me and my fiancée can actually stop in Virginia to go to the bathroom on the way down to see my grandparents in SC now without having to worry about anything?!? That’s amazing! Lol usually we get through VA and NC as fast as we can bc they’re crazy when it comes to the lgbt community but this is great! One more state I can pee in! Haha

    Posted on Thursday, January 23, 2014 at 5:58am
  22. Maybe we’ll be able to add the Old Dominion to the list!

    Posted on Thursday, January 23, 2014 at 5:59am
  23. Exciting news!

    Posted on Thursday, January 23, 2014 at 5:59am
  24. seriously….who did he suck off

    Posted on Thursday, January 23, 2014 at 6:02am
  25. such a vulgar and unnecessary comment...holy cats! But there's one in every bunch!

    Replied on Thursday, January 23, 2014 at 6:11am
  26. You Brian....obviously.

    Replied on Thursday, January 23, 2014 at 7:00am
  27. Tipping point

    Posted on Thursday, January 23, 2014 at 6:02am
  28. Bless him

    Posted on Thursday, January 23, 2014 at 6:04am
  29. Good job Mr. AG it’s about time people recognize that religions have every right to their beliefs. What they do not have the right to do is make laws to force everybody else to follow their beliefs… It’s even stated in the Bible for those of you pushing these laws. God created us with free will.. Are you going to tell him he was wrong? So what are they going to do amend their bible so they can push these laws on everyone or are they going to keep going against their god and saying no free will?

    Posted on Thursday, January 23, 2014 at 6:04am
  30. Rad!

    Posted on Thursday, January 23, 2014 at 6:06am
  31. And Cuccinelli’s head just exploded. Bravo, Mr. AG! It’s exciting to see socially responsible people elected to these types of positions and actually put their money where their mouth is.

    Posted on Thursday, January 23, 2014 at 6:09am
  32. The POWER of a Supreme Court decision! They know they dont have a chance.

    Posted on Thursday, January 23, 2014 at 6:11am
  33. We can make changes slowly but we will get there, so glad to hear this….

    Posted on Thursday, January 23, 2014 at 6:15am
  34. Go Virginia. Make Virginia for Lovers again

    Posted on Thursday, January 23, 2014 at 6:21am
  35. Great step forward now if we could only get this far in my home state of Indiana without having federal injunction. But the end justifies the means so either way. Good for you VA!

    Posted on Thursday, January 23, 2014 at 6:21am
  36. Hopefully the vote here at home in Indiana goes in our favor next week. It certainly isn’t looking good though.

    Posted on Thursday, January 23, 2014 at 6:26am
  37. Even if the ban passes in Indiana, it will eventually be overturned as unconstitutional. That's why I have trouble seeing a state passing a SSM ban at this point--they've got to see the writing on the wall and know it won't last. Doesn't mean they won't still push it through, but it would be a mighty dumb move if they do.

    Replied on Thursday, January 23, 2014 at 7:29am
  38. Representing my family in Hawai’i!

    Posted on Thursday, January 23, 2014 at 6:37am
  39. Everybody deserves to be just as miserable as the rest of us. Enjoy marraige.

    Posted on Thursday, January 23, 2014 at 6:41am
  40. Well, at least he’s flip-flopping on policies in the right direction.

    Posted on Thursday, January 23, 2014 at 6:43am
  41. Yay!!! <3

    Posted on Thursday, January 23, 2014 at 6:44am
  42. oh so i may be able to not hate this state so much after all hmm

    Posted on Thursday, January 23, 2014 at 6:51am
  43. yay!!!

    Posted on Thursday, January 23, 2014 at 6:53am
  44. Awesome news LGBTQI !!!!* :) MOVING FORWARD EQUALITY IN ALL STATES YAY LOL

    Posted on Thursday, January 23, 2014 at 6:56am
  45. Yes!!! Virginia is now in play! !!

    Posted on Thursday, January 23, 2014 at 7:01am
  46. Wow!! Awesome

    Posted on Thursday, January 23, 2014 at 7:11am
  47. Thank you, AG HERRING

    Posted on Thursday, January 23, 2014 at 7:19am
  48. Well he is only doing this to be on the correct side of history. He’s greasing the wheels to promote a kinder, gentler more inclusive GOP Teapublican party

    Posted on Thursday, January 23, 2014 at 7:21am
  49. Hard to believe that va. is doing this. never thought i would live to see this

    Posted on Thursday, January 23, 2014 at 7:30am
  50. Yay!

    Posted on Thursday, January 23, 2014 at 7:36am
  51. Awesome! :-)

    Posted on Thursday, January 23, 2014 at 7:42am
  52. Yay for gay !

    Posted on Thursday, January 23, 2014 at 7:44am
  53. proving again how important each vote is since votes decide elections and elections have consequences

    Posted on Thursday, January 23, 2014 at 7:51am
  54. And the dominoes just keep tipping.

    Posted on Thursday, January 23, 2014 at 7:55am
  55. And another ones gone and another ones gone and another one bites the dust

    Posted on Thursday, January 23, 2014 at 8:15am
  56. Even with the ban struck down, people won’t be able to marry in Virginia yet because in addition to there being a constitutional ban, there’s a law prohibiting same sex marriage. But, hopefully that’ll come down quickly if there’s a positive ruling. I’d love for my marriage to be recognized in my home state, life will be so much easier.

    Posted on Thursday, January 23, 2014 at 8:32am
  57. I love people who choose to be on the right side of history. Hopefully more Democrats will win in other states. The GOP has clearly chosen to be on the wrong side of history, or at least most of them.

    Posted on Thursday, January 23, 2014 at 10:00am
  58. Awesome, great step forward

    Posted on Thursday, January 23, 2014 at 10:11am
  59. Why is it several propel who are commenting think this Herring is a Republican? READ THE ARTICLE!

    Posted on Thursday, January 23, 2014 at 10:14am
  60. Looks like Florida is going to jump on the equality train also.,…yay!!!!!

    Posted on Thursday, January 23, 2014 at 10:21am
  61. Thank you AG for taking a step towards equality. Now we need to get those conservatives on board.

    Posted on Thursday, January 23, 2014 at 10:43am
  62. Ya listening Indiana?

    Posted on Thursday, January 23, 2014 at 10:44am
  63. Bout time…

    Posted on Thursday, January 23, 2014 at 11:17am
  64. North and South Carolina will never do it! :-(

    Posted on Thursday, January 23, 2014 at 12:10pm
  65. Keep moving forward…..

    Posted on Thursday, January 23, 2014 at 12:12pm
  66. I hope this isnt a red herring :p

    Posted on Thursday, January 23, 2014 at 12:15pm
  67. Glad that he took the time to pull his head out of his ass.

    Posted on Thursday, January 23, 2014 at 12:50pm
  68. C’mon,Alabama!!!

    Posted on Thursday, January 23, 2014 at 1:16pm
  69. hoping your conviction is conscience, not political.

    Posted on Thursday, January 23, 2014 at 1:22pm
  70. Light at the end of the proverbial tunnel ?

    Posted on Thursday, January 23, 2014 at 1:27pm
  71. hmm, amazing when a few legalise gay marriage, the rest jump on the bandwagon for political gain, still good to see though :-)

    Posted on Thursday, January 23, 2014 at 1:35pm
  72. Like the John Mellencamp song… this should be the gay marriage movement theme song…
    WHEN THE WALLS COME TUMBLING DOWN… WHEN THE WALLS COME CRUMBLING CRUMBLING
    VA AG agreement that VA SSM ban is unconstitusional should set a new presidence in cases around the country

    Posted on Thursday, January 23, 2014 at 1:38pm
  73. Bill Wohlsifer for Florida Attorney General Virginia’s Attorney General is seeing the light that I announced on day one of my campaign for Attorney General. If elected, I will not oppose the lawsuit filed by Equality Florida. Read my early articles and listen to my radio archives and get to know Florida’s candidate for Attorney General that truly supports equal rights for all Floridians.

    Posted on Thursday, January 23, 2014 at 1:43pm
  74. Please please please let Ohio be next in Nov.

    Posted on Thursday, January 23, 2014 at 2:04pm
  75. An intelligent Man

    Posted on Thursday, January 23, 2014 at 2:24pm
  76. This is what happens when people vote:) vote people

    Posted on Thursday, January 23, 2014 at 2:33pm
  77. Hope this is true.

    Posted on Thursday, January 23, 2014 at 2:44pm
  78. COME ON TEXAS !!!!!

    Posted on Thursday, January 23, 2014 at 2:57pm
  79. I wish AZ Atty General, Tom Horne would do the same thing…

    Posted on Thursday, January 23, 2014 at 3:03pm
  80. Don't worry, people like him will be phasing off, it's a matter of time.

    Replied on Thursday, January 23, 2014 at 5:29pm
  81. my hero

    Posted on Thursday, January 23, 2014 at 3:05pm
  82. Tom Horne would chop off his own legs and arms before that would happen..

    Posted on Thursday, January 23, 2014 at 3:05pm
  83. Posted on Thursday, January 23, 2014 at 3:06pm
  84. Unfasten your Bible Belt!

    Posted on Thursday, January 23, 2014 at 3:13pm
  85. When the shoe is on the other foot or in this case the probe is inserted into your genitals, it feels a bit different….doesnt it, boys??

    Posted on Thursday, January 23, 2014 at 3:13pm
  86. Wow, three states that I thought would be amongst the last to be talking about this. Good for him :)

    Posted on Thursday, January 23, 2014 at 3:15pm
  87. Tom Horne’s going to wait until the government steps in and plucks his moment in history out of his hands.

    Posted on Thursday, January 23, 2014 at 3:24pm
  88. His job is to defend the laws of his state. He should be fired for refusing to defend the laws of his state. All laws.

    So what happens when the next AG shows up and decides not to defend an LGBTQ friendly law?

    Posted on Thursday, January 23, 2014 at 3:24pm
  89. If it's unconstitutional, then he would be ethically required not to defend it. He's done the right thing here.

    Replied on Thursday, January 23, 2014 at 6:40pm
  90. His job is to defend all the laws of his state. An AG should not pick and choose which laws to defend and which not to defend. What happens when an AG decides not to defend an LGBTQ friendly law?

    Posted on Thursday, January 23, 2014 at 3:26pm
  91. We Blue Virginians thank God every night Mark Herring WON the Attorney General seat instead of Mark Obenshain! Thank you Mark for standing up for Justice and Equality! You are on the right side of History and will be rewarded for your service to all Virginians! This will be a very different Virginia in the next four years! Virginia’s doors are open and Ready for Hillary! Yes!

    Posted on Thursday, January 23, 2014 at 3:47pm
  92. Hi,
    Our names are Cynthia R. Hamilton and Sheila M. Cassiano we have been victims and jailed of a hate crime in Corpus Christi, Texas.
    We are out on bond waiting for trial.
    Corpus Christi Police Department is trying to frame us for a felony crime we did not commit.
    We had been trying to get help from the media and everyone we can, but nobody will listen or help us.
    We are pleading for support from the gay community everywhere we can, we need to get our story out to the public for moral support, again we are pleading for your help. PLEASE HELP US.
    This is how it began:
    October 14, I Sheila, took my dog out, she went to a neighbors yard to do her business, and she never did before. The man came out and started yelling and screaming for me to clean and i said OK, im sorry.
    He told me people like me should not be alive and start threatening to kill me and my dog, i went back home to pick up a bag to clean, and my girlfriend Cynthia asked me what is going on and i told to her.
    I went back and my girlfriend followed me, he was waiting for me with a gun in his hands telling me he is going to teach me how to be a woman (im a transgender).
    He pointed the gun at my girlfriend and said: IM GOING TO KILL YOU WHITE LESBIAN BITCH.
    I jumped in front of my girlfriend and he put the gun to my head I grab his hand and said to him: PULL THE TRIGGER I RATHER BE DEAD THEN RAPED.
    I managed to get the gun away from my head His friend pull me inside the apartment and I started to fight for our lives.
    My girlfriend Cynthia broke up the fight and got hit on her head with the gun, and took me away, she call the police and told them: HE ATTACKED AND HE HAS A GUN PLEASE HELP.
    The police arrived and the first question for me was: WHAT FUCK ARE YOU, and i answered im a transgender sir.
    The cops and those guys the started the fight got together and are framing us.
    They are saying we tried to burglarized his home and rape him.
    He is a convicted drug dealer, and the cops found him hiding behind a dumpster with his gun (we have witness who saw him with the gun and drugs).
    Me, Sheila, and my girlfriend never ever had been in trouble with the law, ever.
    We have been indited for burglary of a habitation with intent to committed a second felony because the accuser said my girlfriend pulled a gun on him, and she never did.
    A lots of the proof has disappeared, and 2 cops involved is not showing up on the police report, they were in our side.
    We don’t want to make this email to long but is much more to this story, a lot to tell.
    Please understand we did not commit any crime, we were just defending ourselves.

    Please, please, we are pleading for your help, because no one is listening to us.

    WE NEED YOUR SUPPORT.
    PLEASE FORWARD TO ANYONE THAT MAY BE ABLE TO HELP.

    Thank you for your time and consideration.
    Please call us for more information.
    Our lives and freedom is on the line.

    (361)548-8312
    dudamcassiano@gmail.com
    facebook: Duda M. Cassiano

    P.S.: WE ARE NOT ASKING FOR MONEY WE ARE ASKING FOR SUPPORT AND JUSTICE.
    WE HAVE A LAWYER, WE NEED SUPPORT AND VOICES WE NEED TO PUT THE WORD OUT THERE.

    PLEASE IN NAME OF JESUS CHRISTI LORD HELP US.

    Posted on Thursday, January 23, 2014 at 4:04pm
  93. The tide is turning. The smart ones are getting it! “Marriage is a fundamental right and a ban is discriminatory”. Stop wasting tax payer dollars fighting the obvious!

    Posted on Thursday, January 23, 2014 at 4:11pm
  94. It really doesn’t matter what he says. I’m still married to my wife, legally! We live in Norfolk va. N because the military sees it we still get bah.

    Posted on Thursday, January 23, 2014 at 4:15pm
  95. Hey JON BRUNING of Nebraska…….take a LESSON FROM THIS AG. You are on the WRONG side of HISTORY.

    Posted on Thursday, January 23, 2014 at 5:47pm
  96. I wish he would defend it. We need at least one case to go to the Supremes to overturn all bans nationwide.

    Posted on Thursday, January 23, 2014 at 5:51pm
  97. Good for him.

    Posted on Thursday, January 23, 2014 at 6:41pm
  98. The VA ban is in the state Constitution, which by definition makes it Constitutional. It is the AG’s job to defend it. If he chooses not to he should either resign or appoint an outside firm to defend it.

    In the DOMA cash SCOTUS left same sex marriage up to the states to decide. The state of VA decided and the way to change that is via another amendment to the VA Constitution.

    Posted on Thursday, January 23, 2014 at 6:49pm
  99. Why does no one see the danger that this precedent would set? Imagine a future where a law you like is challenged and the AG decides not to defend it resulting in the law being overturned? The AG works for the people of the state and in this instance the people have spoken and expect their employees in government to perform the job they were hired to do.

    The way we achieve marriage equality is more important than the goal. If we destroy the legal protections built into the system in the process have we really won? Why are so many people blind to this? What good is the victory if all of the things that protect the victory are destroyed in the process?

    Posted on Thursday, January 23, 2014 at 6:57pm