Virginia’s newly elected attorney general notified a federal court in Norfolk on Thursday that the state will no longer defend the constitutionality of the voter-approved ban on same-sex marriage. Twelve days after taking office, Attorney General Mark R. Herring filed a notice of the change in official position, along with legal arguments supporting it. His office also issued a press release.
“After thorough legal review,” Herring said, “I have now concluded that Virginia’s ban on marriage between same sex couples violates the Fourteenth Amendment of the U.S. Constitution . . . . Virginia has argued on the wrong side of some of our nation’s landmark cases . . . . It’s time for the Commonwealth to be on the right side of history and the right side of the law.”
This marked the first time that the top legal officer in a state in the South had begun supporting same-sex marriage under the Constitution. Herring took the strongest position possible: arguing that such a ban must be subjected to “strict scrutiny” and that, under that most rigorous test, the ban discriminates both on the basis of sexual orientation and gender.
That goes even further than the Obama administration has gone, and than any federal appeals court has gone. Herring contended that the right to marry is fundamental under the Constitution, and thus exclusion from it must meet the toughest constitutional standard. He thus was arguing for marriage equality for gays and lesbians, not for a special right of homosexuals to marry.
Virginia’s voters approved the ban in 2006, by a vote of fifty-seven to forty-three percent. Since two lawsuits began against the measure, the state’s legal team has been defending it.
Herring filed the change of position in the case pending in Norfolk (Bostic v. Rainey, District Court docket 13-395), because the judge handling that case has scheduled a hearing for next Thursday. A second case, a class-action lawsuit filed by civil liberties groups, is pending in federal court in Harrisonburg.
While the constitutional challenge goes forward, Herring said, state officials responsible for enforcing it will continue to do so, and its validity will be defended in court by private lawyers for county clerks in Norfolk and Prince William County. Those clerks would have a legal right to appeal if the ban were struck down, he added.
Herring said that he and other state officials will continue to work to ensure that the case moves forward to a final decision as “a fair and proper vehicle” for the constitutional test.
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