Virginia attorney general switches sides on state's gay marriage ban
• Mark Herring says Virginia's ban is unconstitutional
• Move follows court rulings in Utah and Oklahoma
theguardian.com, Thursday 23 January 2014 09.01 EST
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Virginia attorney general Mark Herring Mark Herring has concluded the state's ban on gay marriage is unconstitutional and he will no longer defend it, his office said. Photograph: Steve Helber/AP
The attorney general of Virginia has announced that the state will no longer defend its constitutional ban on gay marriage, siding instead with same-sex couples who are suing to have it struck down.
Mark Herring said on Thursday that he wanted to ensure the state was “on the right side of history, and the right side of the law”.
Lawyers and marriage equality campaigners hailed the decision as “courageous” in a state with a socially conservative tradition. Herring defeated his Republican opponent by only 165 votes in last November’s elections, when voters also chose a Democrat, Terry McAuliffe, as governor.
Gay marriage bans are being challenged by lawsuits in many other conservative states. In the past two months, federal judges have struck down gay marriage bans in Utah and Oklahoma. Appeals are pending, and the latest decision adds to the likelihood that the issue will return to the US supreme court sooner rather than later.
In an interview with National Public Radio, which first reported Herring’s decision, he said: “As attorney general, I cannot and will not defend laws that violate Virginians' rights. The commonwealth will be siding with the plaintiffs in this case and with every other Virginia couple whose right to marry is being denied.”
Herring's spokesman, Michael Kelly, said he would be filing a brief with the federal court on Thursday morning notifying them of a change in the state's position. The plaintiffs in the lawsuits are two couples: Timothy Bostic and Tony London, and Carol Schall and Mary Townley. Bostic and London applied for a marriage license at Norfolk's circuit court clerk's office in July 2013 but were turned down.
Theodore Olson, the lead co-counsel for two of the Virginia plaintiffs, described it as a “ great day” for Virginia and said he looked forward to working with Herring to strike down the state's “odious marriage ban”.
Olson, who together with David Boies secured a historic victory in the supreme court in June last year which restored marriage equality in California, said: “Virginia’s marriage laws are needlessly mean-spirited and cause harsh and gratuitous pain and humiliation to gay and lesbian Virginians and their families.
“Attorney General Herring’s actions today have brought Virginia that much closer to the quintessential American ideals of equality under the law and the freedom to pursue happiness.”
Adam Umhoefer, the director of the American Foundation for Equal Rights, sponsor of the challenges to the California and Virginia same-sex marriage bans, said he hoped others would follow Herring's lead. “The majority of Americans and the majority of Virginians agree that loving, committed couples like our plaintiffs Mary and Carol, and Tim and Tony, deserve the dignity and respect that comes with marriage.”
The election of Herring as attorney general and McAuliffe as governor marked a new chapter for the state. The Republican former attorney general Ken Cuccinelli was a social conservative who sought to maintain the ban on same-sex marriage. Since his appointment, McAuliffe has issued an executive order on inauguration day prohibiting discrimination against state employees who are gay.
In 2006, 57% of Virginians voted to approve the same-sex marriage ban. But recent polling has shown a small majority in favour of marriage equality. A Quinnipiac University poll in July found 50% of registered Virginia voters supported same-sex marriage, while 43% opposed it.
Marriage equality advocates say the issue has a particular resonance in Virginia because of a landmark 1967 US supreme court decision that struck down its ban on interracial marriage.
Mildred and Richard Loving had been married in Washington DC 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 won at the supreme court.
Herring referred to the case in his NPR interview: "There have been times in some key landmark cases where Virginia was on the wrong side, was on the wrong side of history and on the wrong side of the law," he said. "And as attorney general, I'm going to make sure that the [people] presenting the state's legal position on behalf of the people of Virginia are on the right side of history and on the right side of the law."
Herring acknowledged he had changed his position on the issue and said he had always spoken out against discrimination: "I was wrong for not applying it to marriage," he said, acknowledging that his children had played a part in changing his mind.
There are 29 states with constitutional bans on same-sex marriage, according to the Human Rights Campaign. Most have Republican attorney generals. Sarah Warbelow, the state legislative director of the Human Rights Campaign, said Herring’s decision could influence others. “It is certainly possible that attorneys general from other states will look at this decision and it may inform their decisions moving forward. The majority of states that have constitutional bans on same-sex marriage have Republican attorneys general, who are under pressure from the party to defend the constitutional amendments.
“However, if members of the bar like attorneys general are constantly saying these amendments are unconstitutional, that will have an impact on judges.”