Herring switches sides in case challenging Virginia same-sex marriage ban

Saying the commonwealth too often has been on the wrong side of landmark legal cases, Virginia Attorney General Mark R. Herring announced Thursday that his office will not defend the commonwealth’s ban on same sex marriage against a lawsuit in federal court.

The attorney general’s office notified the U.S. District Court for Eastern District of Virginia that it was changing its legal position in the case, siding with the plaintiffs trying to overturn the ban, which is an amendment to the state constitution.

Herring, a Democrat who was sworn in two weeks ago, said at a Richmond news conference that he decided, after a legal review, that the state ban is unconstitutional, violating the 14th Amendment of the U.S. Constitution.

He acknowledged that he had voted for the ban in 2006 while a member of the Virginia legislature.

Herring said his position on same-sex marriage has changed since then. “I saw how that vote hurt a lot of people…I came to the conclusion I wouldn’t want the state telling my son or daughter who they can marry.”

In his prepared remarks, Herring said Virginia had wound up on the wrong side of some landmark Supreme Court decisions, including rulings on school segregation in 1954, interracial marriage in 1967 and the exclusion of women from VMI in 1996.

“It’s time for the commonwealth to be on the right side of history and the right side of the law,” he said.

The lawsuit challenging the state’s same-sex marriage ban, Bostic v. Rainey, involves two couples, Timothy Bostic and Tony London of Norfolk and Mary Townley and Carol Schall of Chesterfield County.

The couples are represented by Ted Olson and David Boies, the attorneys who successfully challenged California's Proposition 8 banning same-sex marriages in that state in the U.S. Supreme Court.

A hearing in the case is scheduled for Jan. 30 at the U.S. District Court for the Eastern District of Virginia. Herring said the hearing influenced the timing of Thursday’s announcement.

The attorney general said his decision is backed by Gov. Terry McAuliffe.  The governor announced during the recent gubernatorial campaign that he supported same-sex marriage but would not make it a high legislative priority because of the difficulty in rescinding a state constitutional amendment.

Condemnation of the Herring’s action by Virginia Republicans was swift.

“The attorney general is the Commonwealth’s lawyer,” said state Sen. Mark Obenshain, who narrowly lost November’s attorney election to Herring. “It is deeply inappropriate for the attorney general to use state resources to actively oppose a duly ratified constitutional amendment.

Speaker of the Virginia House of Delegates William J. Howell called the move a “dangerous precedent.”

“The attorney general has a constitutional and statutory obligation to enforce and defend the duly adopted laws and Constitution of Virginia,” he said in a statement. “This is not an obligation that can be taken lightly. The attorney general’s decision today demonstrates a great deal of disregard for that obligation, as well as the legislative and democratic processes by which those laws are adopted.”

Pat Mullins, chairman of the Republican Party of Virginia said, “It took Mark Herring less than a month to decide he doesn't want to be attorney general. The first job of Virginia's attorney general is to be the Commonwealth's law firm, and to defend the duly passed laws of Commonwealth.”

Herring’s decision, he said, “turns what could have been landmark jurisprudence into a political farce.”

On the other hand, the civil rights group Human Rights Campaign and gay rights group Equality Virginia praised the move.

“Attorney General Herring joins the growing legal and public consensus that barriers to marriage for lesbian and gay couples do not protect anyone and only harm Virginia families,” Human Rights Campaign President Chad Griffin said in a statement. 

“Attorney General Mark Herring’s decision to stand with the majority of Virginians for the freedom to marry is truly commendable,” James Parrish, executive director of Equality Virginia, said in a statement.  “This is a new day for loving gay and lesbian couples who want to marry the person they love in the state they call home.”

Herring's decision follows recent rulings by  federal district court judges that same-sex marriage bans in in Utah and Oklahoma are unconstitutional. The rulings have been stayed pending appeals, but the federal government has recognized as valid more  than a thousand same-sex marriages performed in Utah during a 17-day window before a stay went into effect. 

Herring argues that there is ample precedent for his action, citing a decision last year by former Attorney General Ken Cuccinelli, a Republican, not to defend the state’s Opportunity Educational Institution last year.

Herring also noted that another Republican state attorney general, Jerry Kilgore, joined 43 other attorneys general  in 2003 in arguing they are properly carrying out their constitutional duties in seeking to invalidate state laws they believe to be unconstitutional.