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| Virginia’s Herring files brief opposing same-sex marriage ban | |
| (about 1 hour later) | |
| RICHMOND — Virginia Attorney General Mark R. Herring announced Thursday that he believes the state’s ban on same-sex marriage is unconstitutional, and he joined two same-sex couples in asking a federal court to strike it down. | |
| The action marks a stunning reversal in the state’s legal position on same-sex marriage and is a result of November elections in which Democrats swept the state’s top offices. Herring’s predecessor, Republican Ken Cuccinelli II, adamantly opposed gay marriage and had vowed to defend Virginia’s constitutional amendment banning such unions, which was passed in 2006 with the support of 57 percent of voters. | |
| Herring, too, had voted against same-sex marriage eight years ago, when he was a state senator. But he has said that his views have changed since then, and he filed a brief Thursday stating Virginia’s reversal in a lawsuit in Norfolk that challenges the state’s ban. | |
| “The Attorney General has concluded that Virginia’s laws denying the right to marry to same-sex couples violate the Fourteenth Amendment to the United States Constitution,” the brief states. | |
| At a news conference in Richmond, Herring said that the state has been on the wrong side of landmark legal battles involving school desegregation, interracial marriage and single-sex education. He made the case that Virginia should be on the right side of the law and history in the battle over same-sex marriage. | |
| “As attorney general, I cannot and will not defend a law that violates Virginians’ fundamental constitutional rights,” he said. | |
| Republicans reacted to the news swiftly Thursday by accusing Herring of failing to fulfill a central duty of his office — defending the state constitution. | Republicans reacted to the news swiftly Thursday by accusing Herring of failing to fulfill a central duty of his office — defending the state constitution. |
| “Not two weeks ago I watched the attorney general swear an oath before God and the people of Virginia to preserve, protect and defend our constitution,” said Del. C. Todd Gilbert (R-Shenandoah). “It didn’t take him long to find a way out of that.” | “Not two weeks ago I watched the attorney general swear an oath before God and the people of Virginia to preserve, protect and defend our constitution,” said Del. C. Todd Gilbert (R-Shenandoah). “It didn’t take him long to find a way out of that.” |
| In a statement, House Speaker William J. Howell (R-Stafford) said: “I am very concerned about his announcement today and the dangerous precedent it sets with regard to the rule of law. The Attorney General has a constitutional and statutory obligation to enforce and defend the duly adopted laws and Constitution of Virginia. 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.” | In a statement, House Speaker William J. Howell (R-Stafford) said: “I am very concerned about his announcement today and the dangerous precedent it sets with regard to the rule of law. The Attorney General has a constitutional and statutory obligation to enforce and defend the duly adopted laws and Constitution of Virginia. 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.” |
| Herring used much of the brief to defend his position. | |
| “When the Attorney General, exercising his independent constitutional judgment, concludes that a provision of the Virginia Constitution (or Act of the General Assembly) violates the federal Constitution, he is not duty bound to defend it,” the brief states. “Although the practice is rare for Virginia attorneys general, it is not unprecedented.” | |
| Supporters were quick to cheer Herring’s move. U.S. Sen. Timothy M. Kaine (D-Va.) tweeted this message to his followers: “Thank you @MarkHerringVA for fighting VA’s same-sex marriage ban! I agree — time to bring VA on to the right side of history.” | |
| And state Sen. Adam P. Ebbin (D-Alexandria), the first openly gay member of the General Assembly, said: “Today is a proud day to be a Virginian. We are the birthplace of civil liberties, and it’s exciting to see Virginia getting this right.” | And state Sen. Adam P. Ebbin (D-Alexandria), the first openly gay member of the General Assembly, said: “Today is a proud day to be a Virginian. We are the birthplace of civil liberties, and it’s exciting to see Virginia getting this right.” |
| It was unclear what steps Republicans would take to try to thwart Herring. They had already worried that Herring would change the state’s position — such decisions are up to the attorney general — and are contemplating legislation that would allow them to defend the law in court. | It was unclear what steps Republicans would take to try to thwart Herring. They had already worried that Herring would change the state’s position — such decisions are up to the attorney general — and are contemplating legislation that would allow them to defend the law in court. |
| The attorney general thinks that is unnecessary. The clerks of the circuit court in Norfolk and Prince William County are defendants in the suit, and both are represented by independent counsel. | |
| Janet Rainey, the state registrar of vital records, is also a defendant. Although Herring urged the court to strike down the ban, she will continue to enforce it until the courts act. | |
| The move in Virginia is part of a quickly changing legal landscape reshaped by the Supreme Court’s rulings in two cases on same-sex marriage in June. | The move in Virginia is part of a quickly changing legal landscape reshaped by the Supreme Court’s rulings in two cases on same-sex marriage in June. |
| In one, United States v. Windsor, the court voted 5 to 4 to find unconstitutional a key part of the Defense of Marriage Act, which withheld federal recognition of same-sex marriages performed where they are legal and denied federal benefits to those in such unions. | In one, United States v. Windsor, the court voted 5 to 4 to find unconstitutional a key part of the Defense of Marriage Act, which withheld federal recognition of same-sex marriages performed where they are legal and denied federal benefits to those in such unions. |
| In the other, it allowed to stand a federal judge’s opinion that California’s Proposition 8, which bans same-sex marriage, was unconstitutional. The court ruled that the case was not before it in a way that allowed a ruling on the merits. | In the other, it allowed to stand a federal judge’s opinion that California’s Proposition 8, which bans same-sex marriage, was unconstitutional. The court ruled that the case was not before it in a way that allowed a ruling on the merits. |
| The justices sidestepped a critical question: whether state bans on same-sex marriage violate the Constitution’s guarantees of equal protection and due process. | The justices sidestepped a critical question: whether state bans on same-sex marriage violate the Constitution’s guarantees of equal protection and due process. |
| But federal judges in Utah and Oklahoma have said that the reasoning used by the court majority meant that constitutional amendments in those states banning same-sex unions cannot stand. Gay marriages took place in Utah, but both decisions are now stayed pending appeal. | But federal judges in Utah and Oklahoma have said that the reasoning used by the court majority meant that constitutional amendments in those states banning same-sex unions cannot stand. Gay marriages took place in Utah, but both decisions are now stayed pending appeal. |
| The highest courts in New Jersey and New Mexico have held that gay couples have the right to be married there. The District of Columbia and 17 states — including Maryland, but not Utah or Oklahoma — now allow such unions. | The highest courts in New Jersey and New Mexico have held that gay couples have the right to be married there. The District of Columbia and 17 states — including Maryland, but not Utah or Oklahoma — now allow such unions. |
| The Obama administration took a position similar to Herring’s when it announced it would not defend DOMA, which Congress passed in 1996 and then-President Bill Clinton signed into law. Attorney General Eric H. Holder Jr. joined the legal challenge against the key part of the law, and House Republicans hired a lawyer in an unsuccessful bid to save it. | The Obama administration took a position similar to Herring’s when it announced it would not defend DOMA, which Congress passed in 1996 and then-President Bill Clinton signed into law. Attorney General Eric H. Holder Jr. joined the legal challenge against the key part of the law, and House Republicans hired a lawyer in an unsuccessful bid to save it. |
| Similarly, Democratic attorneys general in other states have said they think their bans are unconstitutional. Democrats in California refused to defend Proposition 8. And last summer, Pennsylvania Attorney General Kathleen Kane bowed out of challenges to her state’s law. | Similarly, Democratic attorneys general in other states have said they think their bans are unconstitutional. Democrats in California refused to defend Proposition 8. And last summer, Pennsylvania Attorney General Kathleen Kane bowed out of challenges to her state’s law. |
| Herring, whose race against Republican Mark D. Obenshain was so close it was not decided until Dec. 18, has been in office just two weeks. But he faced a tight deadline in deciding whether to change the state’s legal position. | Herring, whose race against Republican Mark D. Obenshain was so close it was not decided until Dec. 18, has been in office just two weeks. But he faced a tight deadline in deciding whether to change the state’s legal position. |
| U.S. District Judge Arenda L. Wright Allen has scheduled oral arguments for Jan. 30 in the Norfolk case. It received a jolt of attention last fall when lawyers Theodore B. Olson and David Boies, who brought the federal challenge of Proposition 8, announced that they were joining the plaintiffs’ side. | U.S. District Judge Arenda L. Wright Allen has scheduled oral arguments for Jan. 30 in the Norfolk case. It received a jolt of attention last fall when lawyers Theodore B. Olson and David Boies, who brought the federal challenge of Proposition 8, announced that they were joining the plaintiffs’ side. |
| In addition, the American Civil Liberties Union is challenging the Virginia ban in a federal suit in Harrisonburg. That case is not as far along. | In addition, the American Civil Liberties Union is challenging the Virginia ban in a federal suit in Harrisonburg. That case is not as far along. |
| Virginia has been a particularly appealing place for a challenge by supporters of gay rights because of the Supreme Court’s 1967 decision in Loving v. Virginia, which struck down laws against interracial marriage. Those who support same-sex unions often draw a parallel. | Virginia has been a particularly appealing place for a challenge by supporters of gay rights because of the Supreme Court’s 1967 decision in Loving v. Virginia, which struck down laws against interracial marriage. Those who support same-sex unions often draw a parallel. |
| Herring made the same point. “Loving teaches that the Fourteenth Amendment protects the fundamental right to marry even if the way in which it is practiced would have surprised the framers or made them uncomfortable,” he wrote. | |
| Democrats are sensitive to charges that it is Herring’s duty to defend Virginia’s law regardless of whether he agrees with it. They point out that Cuccinelli refused to defend one of then-Gov. Robert F. McDonnell’s education reforms in court, saying he believed that the legislation (for state takeovers of failing schools) was unconstitutional. | Democrats are sensitive to charges that it is Herring’s duty to defend Virginia’s law regardless of whether he agrees with it. They point out that Cuccinelli refused to defend one of then-Gov. Robert F. McDonnell’s education reforms in court, saying he believed that the legislation (for state takeovers of failing schools) was unconstitutional. |
| Herring also said that the state’s law will be defended in the Norfolk challenge. Norfolk clerk George E. Schaefer is represented by a private lawyer paid by the state’s risk management department. Prince William clerk Michèle B. McQuigg, who asked to intervene in the case, is represented by the conservative legal group Alliance Defending Freedom. | |
| Michael Laris and Rachel Weiner contributed to this report. Vozzella, Laris and Weiner reported from Richmond; Barnes reported from Washington. |