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Attorney General comes out against state marriage ban

Attorney General Mark R. Herring on Thursday changed Virginia’s legal position in Bostic v. Rainey, siding with the plaintiffs in the pending case challenging Virginia’s ban on marriage rights for same sex couples.

Because he has determined the law to be a violation of the U.S. Constitution, Attorney General Herring will not defend the ban and will instead seek to have it declared unconstitutional.

Bostic v. Rainey was filed in July 2013 in federal court in Norfolk.  On Dec. 23, 2013, Judge Arenda Wright Allen scheduled oral argument to take place on Jan. 30. 

A second case is pending in federal court in Harrisonburg.  In both cases, same-sex couples sued Janet Rainey, in her official capacity as State Registrar of Vital Records, because the registrar has primary responsibility for carrying out Virginia’s laws in compliance with Virginia’s constitutional and statutory bans on same-sex marriage.  

The lawsuits obligate the attorney general to appear on Rainey’s behalf, to present the commonwealth’s legal position, and to make an independent constitutional judgment whether Virginia’s laws conflict with the Constitution of the United States.  The timing in Bostic, with oral argument scheduled next week, necessitated deliberate but prompt action.

“I swore an oath to both the United States Constitution and the Virginia Constitution. After thorough legal review, I have now concluded that Virginia’s ban on marriage between same sex couples violates the Fourteenth Amendment of the U.S. Constitution on two grounds: marriage is a fundamental right being denied to some Virginians, and the ban unlawfully discriminates on the basis of both sexual orientation and gender,” said Herring. “Virginia has argued on the wrong side of some of our nation’s landmark cases—in school desegregation in 1954, on interracial marriage with the 1967 Loving decision, and in 1996 on state-supported single-gender education at VMI.  It’s time for the commonwealth to be on the right side of history and the right side of the law.

“The supporters of Virginia’s ban on same-sex marriage have argued in their legal brief that marriage between a man and a woman best promotes responsible procreation and optimal child rearing. This argument not only disrespects Virginia’s same-sex couple families, but it is illogical.  It is simply inconceivable that denying same-sex couples the right to marry will make heterosexual couples more likely to marry and have children,” said Herring.  

“Virginians should no longer face discrimination and economic hardship based on whom they love and commit their lives to. Writing for the Court in 2003 in the Lawrence v. Texas case, Justice Kennedy explained that the Constitution’s framers ‘knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.’ The registrar and local clerks will continue to enforce the ban until the courts can act, but the registrar and I will not defend it and will argue for its being declared unconstitutional.”

Former Attorney General Ken Cuccinelli declined to defend the Opportunity Educational Institution last year.  

Former Attorney General Jerry Kilgore joined with 43 other state attorneys general in 2003 to argue that an attorney general is properly carrying out his constitutional duties when he seeks to invalidate a state law that he believes, in his independent judgment, to be unconstitutional.  

In that brief, Kilgore and the other attorneys general call the “independence” of the attorney general “critical to the preservation of ordered liberty.” That brief goes on to say that when the attorney general believes a state law “violates the constitution, he has a paramount obligation to defend the constitution he is sworn to uphold.”

At the federal level, the U.S. Attorney General and the Justice Department have consistently advised that the executive branch does not have a duty to defend a statute that the president believes to be unconstitutional. 

As a state senator, Herring voted eight years ago against extending marriage rights to same-sex couples, but he has discussed at length how his views and position have changed since that vote. 

For years, he has spoken publicly about the need to end discrimination and worked to make it happen. He campaigned last year for attorney general in support of marriage equality.

To move the Bostic case forward to a prompt decision, the attorney general and registrar will work responsibly to ensure that the case remains a fair and proper vehicle for conclusively deciding the legal question.  

Despite the state’s change in legal position, the Clerks of the Circuit Courts of Norfolk and Prince William County, represented by well-qualified counsel, will continue to forcefully defend the legality of Virginia’s ban.  

Circuit court clerks are independent constitutional officers who would have standing to appeal an injunction barring them from refusing to issue marriage licenses to otherwise qualified same-sex couples.  The court also has the previous briefing by the office of the former attorney general, Ken Cuccinelli, in support of the ban.

In the two cases in federal court challenging the commonwealth’s marriage amendment, Herring is urging the courts to rule for the plaintiffs challenging that ban.  

In doing so, Herring reversed the position of his predecessor, Cucinelli, who had argued strenuously to maintain the ban on marriage for same-sex couples.


Human Rights Campaign

“Attorney General Herring joins the growing legal and public consensus that barriers to marriage for lesbian and gay couples do not protect anyone and only harm Virginia families,” said Human Rights Campaign President Chad Griffin.  “This courageous stand on behalf of the commonwealth plants Virginia firmly on the right side of history.”  

Virginia voters approved a constitutional amendment barring marriage and other forms of relationship recognition for same-sex couples in 2006.  


House Democratic Caucus

On Thursday, the House Democratic Caucus commented on Attorney General Mark Herring’s decision to challenge Virginia’s ban on same-sex marriage:

 “We are pleased to hear that Attorney General Herring has, after careful consideration, determined that Virginia’s ban on same-sex marriage is unconstitutional,” said Democratic House Leader David Toscano. “We applaud the Attorney General for working to ensure the rights of all of our citizens are protected.” 

“Windsor was clear that the 14th Amendment requires Virginia to honor all marriages from other states,” said Delegate Scott Surovell. “I’m glad to see Attorney General Herring standing up to honor federal precedent and not subjecting Virginia to the ignominy of Massive Resistance to equality yet again.”


American Foundation
for Equal Rights

The American Foundation for Equal Rights (AFER), the sponsor of Virginia’s leading marriage equality case, Bostic v. Rainey, also hailed Herring’s decision that he will actively oppose the state’s onerous and discriminatory Constitutional ban on marriage equality.

“This is a great day for the Commonwealth of Virginia,” said plaintiffs’ lead co-counsel Theodore B. Olson. “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.  We are grateful for his leadership and look forward to working with him to strike down Virginia’s odious marriage ban.”



The ACLU said it is pleased with the Virginia attorney general’s decision to conclude Virginia’s bans on marriages for same-sex couples are unconstitutional, and he will no longer defend legal challenges to the bans now pending in federal court. 

“We’re pleased to welcome the attorney general and the commonwealth to the right side of history, and we want to be sure that whatever happens next will result in a quick, clear and final decision affirming the freedom to marry for our clients and for all Virginians,” said Claire Guthrie Gastañaga, executive director of the ACLU of Virginia.

The attorney general’s office filed papers announcing its new position Thursday in the lawsuit Bostic v. Rainey, in which attorneys Ted Olson and David Boies are counsel, and soon should file similar papers in the second lawsuit Harris v. McDonnell, which was filed last year by the American Civil Liberties Union, the ACLU of Virginia, Lambda Legal, and the law firm Jenner and Block.

The legal move follows the inauguration of Democratic Governor Terry McAuliffe, who replaced Republican Governor Bob McDonnell earlier this year, and Attorney General Herring, who replaced former Attorney General Cuccinelli. The previous administration had staunchly defended the marriage ban.

“Today action’s by Virginia’s chief legal officer continues America’s evolution on this issue. More and more Americans are embracing the idea that all loving and committed couples should have access to the protections that only come with marriage,” said Amanda Goad, staff attorney with the ACLU Lesbian Gay Bisexual and Transgender Project. “With the attorney general on our side, we hope that we can soon count Virginia among the 17 other states where same-sex couples have the freedom to marry.”


Sen. Mark Obenshain

Obenshain (R-Harrisonburg), who opposed Herring for the Attorney General post, said it is not the role of the attorney general to make a determination unilaterally on the unresolved constitutional issue.

 “Fair minded people disagree on the issue of gay marriage, but this is, fundamentally, about the rule of law and allowing the system to work. Whether the Marriage Amendment will survive court scrutiny is clearly an unresolved question, but our system of law does not work when one side of the argument fails to show up. It is manifestly the job of the attorney general to defend the law and let it rise or fall on it merits in court.”

Attorney General Herring, who on the campaign trail refused to take a clear position on whether he would defend Virginia law in this and other instances, will be filing a brief in support of the plaintiffs, according to spokeswoman Ellen Qualls.

“The attorney general is the commonwealth’s lawyer,” said Obenshain. “It is deeply inappropriate for the attorney general to use state resources to actively oppose a duly ratified constitutional amendment. Through this decision, Herring is effectively seeking to unilaterally reverse the actions of the general assembly in adopting the amendment, and the people of Virginia in ratifying it. There are deeply held convictions on both sides of this issue, which is why it is all the more important that the case has its day in court — and that both sides of the dispute are ably and robustly argued.” 

Obenshain concluded, “I look forward to working with the attorney general on many important issues for the good of all Virginians, and have no intention of highlighting every possible point of disagreement that may arise throughout Herring’s term in office, but I consider the question of whether or not the office of the attorney general is to defend Virginia law a matter of utmost importance, something that goes to the heart of the duties of the attorney general. This is especially true given Mark Herring’s dissembling comments made over the past six months on the campaign trail.  Virginians should be disappointed that he didn’t display the courage to share his intentions when repeatedly asked during his campaign. Today’s decision sets a disturbing precedent and has the potential to deprive Virginians on both sides of this important issue of the legal scrutiny the matter clearly merits.”