Virginia Attorney General Says Gay Marriage Ban Is Unconstitutional

gay marriageAfter a major political shift among Virginia’s upper level elected officials, the new attorney general has issued a statement from his office on Thursday that the state’s prohibition of gay marriage is against the constitution and for this reason, he will no longer argue for it in federal litigation.

Virginia has been considered a key state in the nationwide battle to give same sex couples the right to be married. Now, it will side with the groups who desire to have the ban against it dissolved. This was made public in an email from a spokesman for new Virginia Attorney General Mark Herring. The email was sent to the Associated Press.  It was written by spokesman Michael Kelly and said that Herring had reviewed the matter thoroughly and came to the conclusion that the current ban on same sex unions is in direct violation of the United States Constitution.  For this reason, he said he will not defend it.

Herring had, as part of his campaign, a stance on marriage equality.  He planned to file a brief later with the federal court in Norfolk, where a lawsuit on the issue is currently being heard. This brief would serve as an official notification of Virginia’s changing of position on the issue.  The shift in policy comes after recent federal rulings in Utah and Oklahoma where gay marriage bans were dissolved.  The Virginia lawsuits say such a ban violates the Constitutional clauses granting both due process and equal protection under the law.

In the recent election, Democrat Terry McAuliffe was made governor and Herring won the title of attorney general. This signaled an obvious change in ideology then that held by their conservative predecessors. Ken Cuccinelli, Herring’s predecessor in the state’s top legal post, was known as an activist on such issues as gay marriage and abortion. On inauguration day, McAuliffe signed an executive order prohibiting discrimination in any form against gay state employees.

A survey by Quinnipiac University taken last July showed that half of registered voters in the state support same-sex marriage while 43 percent are in opposition to it. The survey had a margin of error of 3.1 percentage points.

Many of those for the dissolving of the ban hearken back to a landmark United States Supreme Court decision in 1967 that involved a Virginia couple and interracial marriage. Richard and Mildred Loving had their Virginia home raided by police in 1958 and found themselves with violating a racial integrity law that was part of Virginia law at the time. Though they were convicted, they eventually won the day in the nation’s highest court.

Theodore Olson and David Boies, known for bringing down the same-sex marriage ban in California, are now leading the legal team in Virginia in the same challenge. Both lawyers spoke of Virginia’s history when making their intentions known.

In the Virginia General Assembly, Democratic lawmakers are largely outnumbered by the conservative legislators. However, they are feeling a surge of confidence by the recent political shift and have recently, taken aim at the gay marriage ban in their state. Proposed amendments to any constitution is a very legal process and many say the earliest any type of amendment could be presented to voters would be in 2016.

By Rick Hope

Washington Post


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