Virginia Attorney General Mark Herring says he believes the state’s ban on same-sex marriage is unconstitutional.
On Thursday he said he will not defend the law in federal court.
Reaction was swift in Richmond where Democrats hailed the announcement, and Republicans said the
Attorney General has failed to live up to his responsibilities.
There are at least two Virginia challenges moving forward in federal court. A judge will hear arguments in a Norfolk case next week. And Herring said the time had come to state his position.
Herring said he believes the freedom to marry is a fundamental right.
After determining that an unconstitutional law was infringing on the rights of Virginia families, he told reporters he has a duty and legal authority to act.
“We have much to be proud of, but too many times in our history our citizens had to lead the way on civil rights, while their leaders stood against them. This will not be another instance,” Herring said.
The law remains in effect, but Herring said he hopes to make persuasive arguments why the law is unconstitutional.
Republicans say an overwhelming number of Virginians supported the marriage amendment, and they argue it is the Attorney General’s responsibility to defend it.
RICHMOND, Va. (AP) -- Virginia's attorney general has officially joined a lawsuit challenging the state's 2006 ban on gay marriage.
Attorney General Mark R. Herring argues in a brief filed Thursday in federal court that the state's prohibition on same-sex marriage is unconstitutional. He calls marriage a fundamental right and the ban discriminatory.
The brief was filed in U.S. District Court in Norfolk, where two couples are taking on the ban.
A hearing is scheduled for Jan. 30 before a judge who was nominated by President Barack Obama.
Herring's decision marks a seismic political shift in Virginia, a battleground state in the national fight to grant same-sex couples the right to wed. It comes less than two weeks after he took office in an historic Democratic sweep of the state's top political offices.
Here is the a release from Herring about his position:
Attorney General Mark R. Herring today changed Virginia's legal position in Bostic v. Rainey, siding with the plaintiffs in the pending case challenging Virginia's ban on marriage rights for same sex couples. Because he has determined the law to be a violation of the U.S. Constitution, Attorney General Herring will not defend the ban and will instead seek to have it declared unconstitutional.
Bostic v. Rainey was filed in July 2013 in federal court in Norfolk. On December 23, 2013, Judge Arenda Wright Allen scheduled oral argument to take place on January 30th. A second case is pending in federal court in Harrisonburg. In both cases, same-sex couples sued Janet Rainey, in her official capacity as State Registrar of Vital Records, because the Registrar has primary responsibility for carrying out Virginia’s laws in compliance with Virginia’s constitutional and statutory bans on same-sex marriage. The lawsuits obligate the Attorney General to appear on Rainey’s behalf, to present the Commonwealth’s legal position, and to make an independent constitutional judgment whether Virginia’s laws conflict with the Constitution of the United States. The timing in Bostic, with oral argument scheduled next week, necessitated deliberate but prompt action.
“I swore an oath to both the United States Constitution and the Virginia Constitution. 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,” said Attorney General Herring.“Virginia has argued on the wrong side of some of our nation’s landmark cases—in school desegregation in 1954, on interracial marriage with the 1967 Loving decision, and in 1996 on state-supported single-gender education at VMI. It’s time for the Commonwealth to be on the right side of history and the right side of the law.”
"The supporters of Virginia’s ban on same-sex marriage have argued in their legal brief that marriage between a man and a woman best promotes responsible procreation and optimal child rearing. This argument not only disrespects Virginia’s same-sex couple families, but it is illogical. It is simply inconceivable that denying same-sex couples the right to marry will make heterosexual couples more likely to marry and have children,” said Attorney General Herring. “Virginians should no longer face discrimination and economic hardship based on whom they love and commit their lives to. Writing for the Court in 2003 in the Lawrence v. Texas case, Justice Kennedy explained that the Constitution’s framers ‘knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.’ The Registrar and local clerks will continue to enforce the ban until the courts can act, but the Registrar and I will not defend it, and will argue for its being declared unconstitutional.”
While infrequent, there is precedent for the Attorney General’s actions today. Former Attorney General Ken Cuccinelli declined to defend the Opportunity Educational Institution last year. Former Attorney General Jerry Kilgore joined with 43 other State attorneys general in 2003 to argue that an attorney general is properly carrying out his constitutional duties when he seeks to invalidate a State law that he believes, in his independent judgment, to be unconstitutional. In that brief, Kilgore and the other attorneys general call the “independence” of the Attorney General “critical to the preservation of ordered liberty.” That brief goes on to say that when the Attorney General believes a state law "violates the constitution, he has a paramount obligation to defend the constitution he is sworn to uphold.”
At the federal level, the U.S. Attorney General and the Justice Department have consistently advised that the Executive Branch does not have a duty to defend a statute that the President believes to be unconstitutional. Justice Antonin Scalia has also said that the President’s powers to resist legislative encroachments by Congress include the power “to disregard them when they are unconstitutional.” Indeed, the President and the Justice Department recently declined to defend the constitutionality of section 3 of the Defense of Marriage Act, which the Supreme Court struck down last year because it unconstitutionally refused to recognize valid same-sex marriages on equal terms with valid opposite-sex marriages. There are other examples as well. In 1989, then-acting Solicitor General John Roberts filed a friend-of-the-court brief expressing the views of the United States that a federal statute was unconstitutional, while allowing the agency to defend it through its own counsel. And in the 1976 landmark election-law case Buckley v. Valeo, then-Solicitor General Robert Bork filed two briefs, one defending the constitutionality of the election-law rules at issue, and another, on behalf of the Attorney General and the United States, which provided a counterargument to aid the Court in resolving the First Amendment questions presented.
As a state senator, Herring voted eight years ago against extending marriage rights to same-sex couples, but he has discussed at length how his views and position have changed since that vote. For years, he has spoken publicly about the need to end discrimination and worked to make it happen. He campaigned last year for attorney general in support of marriage equality.
To move the Bostic case forward to a prompt decision, the Attorney General and Registrar will work responsibly to ensure that the case remains a fair and proper vehicle for conclusively deciding the legal question. Despite the State’s change in legal position, the Clerks of the Circuit Courts of Norfolk and Prince William County, represented by well-qualified counsel, will continue to forcefully defend the legality of Virginia’s ban. Circuit court clerks are independent constitutional officers who would have standing to appeal an injunction barring them from refusing to issue marriage licenses to otherwise qualified same-sex couples. The Court also has the previous briefing by the office of the former attorney general, Ken Cuccinelli, in support of the ban.
Following a seismic political shift in Virginia's top elected offices, the new attorney general has concluded that the state's ban on gay marriage is unconstitutional and he will no longer defend it in federal lawsuits, his office said Thursday.
Virginia, widely considered a battleground state in the nationwide fight to grant same-sex couples the right to wed, will instead side with the plaintiffs who are seeking to have the ban struck down, a spokesman for Attorney General Mark Herring said in an email to The Associated Press.
"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," spokesman Michael Kelly wrote.
Herring, a Democrat who campaigned in part on marriage equality, was to file a brief Thursday with the federal court in Norfolk, where one of the lawsuits is being heard, as notification of the state's change in position in the case, Kelly said.
The state's shift comes on the heels of court rulings in which federal judges struck down gay marriage bans in Utah and Oklahoma.
The lawsuits in Virginia say the state's ban violates the Constitution's equal protection and due process clauses.
The decision by Herring drew divided responses — celebration from attorneys challenging the ban and condemnation from conservative activists.
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."
"It's a nice day to be an American from Virginia," he wrote in an email.
Lambda Legal, which has challenged the state's gay marriage ban in federal court in Harrisonburg, called Herring's decision critical as he is "the keeper of the federal and state constitution in the commonwealth.""
But the conservative Family Foundation of Virginia 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."
Herring's announcement comes two weeks after Democrats who swept the top of the November ballot took office, changing the state's political landscape.
With the election of Democrats Terry McAuliffe as governor and Herring as attorney general, Virginia made a hairpin turn away from the socially conservative officeholders they succeeded, particularly Republican Attorney General Ken Cuccinelli, 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 that she would stop defending that state's gay marriage ban, also calling it unconstitutional. An outside law firm was hired to represent the state in a lawsuit over the ban.
Proponents of striking down 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 had been 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.
The legal costs in the Norfolk case are being paid for by the American Foundation for Equal Rights, which was behind the effort to overturn California's gay marriage ban.
David Boies and Theodore B. Olson, the high-profile legal tandem that brought down California's prohibition on same-sex marriage, lead the legal team in that challenge. Both cited Virginia's history when they announced their challenge.
"This case is about state laws that violate personal freedoms, are unnecessary government intrusions, and cause serious harm to loving gay and lesbian couples," Olson had said.
The Norfolk lawsuit's plaintiffs 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 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 gay men and lesbians, along with their children and families, because it denies them the same definition of marriage afforded to opposite-sex couples.
In that 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 immediate 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.
There are currently 17 states that allow gay marriage.