RICHMOND, Va. (AP) - Following a seismic political shift in Virginia,
the new attorney general has concluded that the state's ban on gay
marriage is unconstitutional, and on Thursday he joined a lawsuit
Attorney General Mark R. Herring says in a brief filed in federal
court in Norfolk that marriage is a fundamental right and the ban is
Virginia, widely considered a battleground state in the nationwide
fight to grant same-sex couples the right to wed, is siding 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
Herring is a Democrat who campaigned in part on marriage equality.
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
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
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
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
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.
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