Virginia AG to Support Marriage Equality

Virginia was one of more than 30 states to pass laws banning same-sex marriage between 2004 and 2008 and that law is now being challenged in federal court. The new Democratic attorney general of the state has decided not to defend the law in court but to file a brief arguing that the law is unconstitutional.

Virginia Attorney General Mark R. Herring will announce Thursday that he believes the state’s ban on same-sex marriage is unconstitutional and that Virginia will join two same-sex couples in asking a federal court to strike it down, according to an official close to the attorney general with knowledge about the decision…

Herring will say that Virginia has been on the “wrong side” of landmark legal battles involving school desegregation, interracial marriage and single-sex education at the Virginia Military Institute, one official said. He will make the case that the commonwealth should be on the “right side of the law and history” in the battle over same-sex marriage.

He has not informed Republicans in Richmond about his plans; an uproar is likely. GOP lawmakers have worried that Herring would change the state’s position — such decisions are up to the attorney general — and have contemplated legislation that would allow them to defend the law in court.

The attorney general thinks that is unnecessary, the official said. The clerks of the circuit court in Norfolk and Prince William County are defendants in the suit, and both are represented by independent counsel.

He’s absolutely right about the state being on the wrong side of history in every previous battle for justice and equality.

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  • doublereed

    This is a great example of how elections do matter.

  • dingojack

    “Herring will say that Virginia has been on the “wrong side” of landmark legal battles involving… interracial marriage… ”

    Ah Virginia – the hate state.

    😉 Dingo

    ———–

    Good on the AG for doing the right thing though! Kudos.

  • lordshipmayhem

    The fact that the GOP cannot see that this is unconstitutional, that they cannot see the surveys that indicate their position isn’t supported by the majority of Americans below the age of 50, makes me wonder:

    Virginia, why do you insist on electing dumb-as-a-post politicians?

  • Scr… Archivist

    Now that’s a loving decision.

  • cptdoom

    Ah Virginia – the hate state.

    Virginia is a hate Commonwealth, thank you very much.

    I heard Herring’s statement when he made this announcement, and although the news had already broken, found myself really moved as he recounted VA’s bleak history on equality issues, and stated this time they would be on the right side. Now the judge may cancel oral arguments and just rule.

  • rpjohnston

    I’m glad to hear it, esp after fuckin’ Cooch. It does bother me though – is it normal for AG’s to just decide they won’t defend laws? I mean, isn’t that kind of their job? It doesn’t seem like good governance if it was normal policy for a state to just throw its laws under a bus when the party changes. Laws would be meaningless.

    Even so, marriage equality is becoming increasingly easier to accept. For me, the real test will come when the law mandating rape for women seeking abortions gets challenged (if it hasn’t already, I don’t get a lot of news).

  • Chiroptera

    rpjohnston, #6: It does bother me though – is it normal for AG’s to just decide they won’t defend laws? I mean, isn’t that kind of their job?

    If Virginia is like most of the other states, the Attorney General had to take an oath to, among other things, defend the Constitution of the US.

    Also, AGs and even prosecuting attorneys have some discretion over which cases they will fight. Limited time, limited personnel, you can’t take on every single case that drops on your desk. I would guess “ovious loser” would be an important criterion to use in deciding which cases to punt.

  • Michael Heath

    rpjohnston writes:

    is it normal for AG’s to just decide they won’t defend laws? I mean, isn’t that kind of their job? It doesn’t seem like good governance if it was normal policy for a state to just throw its laws under a bus when the party changes. Laws would be meaningless.

    The VA AG’s mission statement requires them to defend the U.S. Constitution: http://www.oag.state.va.us/About%20the%20Office/Mission.html

    Sometimes the laws of a state violate a state’s Constitution or the U.S. Constitution. In such cases the AG may conclude they have a legal obligation to defend the constitution at the expense of a law. The U.S. Constitution has supremacy over the VA Constitution and all that state’s laws. Federal courts have repeatedly found that anti-gay marriage laws violate both the equal protection and due process clauses of the 14th Amendment of the U.S. Constitution.

    So in this case the VA AG is arguing that the state of VA should be defending the rights of people; in its jurisdiction in spite of a bigoted state law that demands otherwise. This is not mere belief by a singular AG to argue against upholding one or more of VA’s laws, but instead a credible defense of the U.S. Constitution – which this AG is most obligated to defend over all state laws.

  • colnago80

    There is precedent for this action. Then Attorney General of California Jerry Brown declined to defend Prop. 8 in federal court. Pennsylvania AG Kathleen G. Kane has declined to defend the same sex marriage law in that state. However, Herring has gone one step further and joined the plaintiffs in the Virginia law suit.

  • drr1

    This kind of thing happens locally, too. In Michigan, DeBoer v. Snyder is an equal protection challenge to the Michigan Marriage Amendment and the Michigan Adoption Code. When the suit was filed early in 2012, the defendant Oakland County Clerk was a Republican. He essentially rode on the coattails of our Republican governor and Republican attorney general.

    But in November 2012, Lisa Brown – a Democrat – defeated the Republican Oakland County Clerk incumbent. One of her first actions was to remove the Oakland County corporation counsel from the case and to hire outside counsel (who took the case pro bono), and to announce that she agreed with the plaintiffs, based on her belief that the Michigan laws do violate the 14th Amendment. This made the governor and the attorney general quite mad (they filed a motion to realign the parties, which the court denied), but it absolutely was within Ms. Brown’s authority as county clerk.

    Last week I gave a presentation on DeBoer to the Michigan Association of County Clerks. Ms. Brown was there, and we had a great time talking about the case. It’s obvious that she feels very strongly about this issue, and that she’ll do everything within her power to bring an end to these unjust laws. Ms. Brown’s role in this case demonstrates beyond doubt that local elections matter just as much as state and national elections.

  • colnago80

    Re drr1 @ #10

    This made the governor and the attorney general quite mad (they filed a motion to realign the parties, which the court denied), but it absolutely was within Ms. Brown’s authority as county clerk.

    What a revolting development, Rick Snyder, Michael Heath’s hero.

  • Michael Heath

    colnago80 writes:

    What a revolting development, Rick Snyder, Michael Heath’s hero.

    As always with me and nearly everyone else this person references, the assertion above misrepresents my position. I.e, the current governor of MI is not, “my hero”.

    I greatly admire what the Oakland County Clerk is doing here. I continue to remain befuddled why pro-marriage advocates don’t continually both refer to the equal protection and due process clauses of the 14th Amendment, and also repeat those clauses. Especially since the text is concise, understandable by all, and unambiguously in support of protecting gays’ right to marry. I’m glad to see this clerk gets that.

  • had3

    It’s worth noting that our, I’m from Virginia, AG barely won the election. There but for the vote of ~1000 people, we would again be on the wrong side of history. Then again, I’m from the “occupied” north part of Va according to True(tm) Virginians.

  • John Pieret

    THe Nevada AG is reconsidering her opposition to invalidating that state’s ban on SSM now that the 9th Circuit has applied heightened scrutiny to differential treatment of LGBT people.

  • rpjohnston

    Thanks Chiroptera and Michael heath, I understand better now =)

    @had3: Nova represent yo.