Virginia’s newly-elected Attorney General, Mark R. Herring (D), states that he will no longer support the commonwealth’s ban on same-sex marriage. Herring has filed a brief motioning to a federal court to strike the law down as unconstitutional. In 2006, 57 percent of Virginians voted to add a constitutional ban on gay marriage.
Spokeswoman Ellen Qualls explained the ban clearly disrupts the Constitutional 14th amendment. She explained that the fundamental right of marriage has been denied to a group of Virginians and it discriminates on the basis of gender and sexual orientation. As a state senator, Herring voted in favor for the 2006 ban on gay marriage. However, he stated that in the subsequent years he has changed his mind on the issue. Herring mentioned last year, the more he considered it, the less he accepted the idea of the state dictating to his son or daughter whom to marry.
Currently, eighteen states, including the District of Columbia, recognize the legality of same-sex marriage. Since 2013, eight states moved away from the now thirty-three that ban same-sex marriage by either a state constitutional amendment, state statute, or both.
Some Republicans have fought back against Herring’s proclamation. GOP legislators are stating that they will attempt to block Herring’s action by funding legal defense for laws the commonwealth’s highest legal force chooses not to defend. This actions stems from an instance when former Attorney General Ken Cuccinelli appointed an outside counsel to represent Virginia in a lawsuit regarding a school takeover law that he believed was unconstitutional. State Senator Stephen D. Newman (R-Lynchburg) stated that Republicans are unclear on certain mechanisms they will need to follow in order to forward their legal opposition. Nonetheless, he stated that ways to oppose Herring’s case will be researched over the next week.
Democrats have been sensitive to claims that the attorney general should back a law change whether or not he agrees with it. They drew on the example of Cuccinelli not backing former Governor Bob McDonnell’s (R) education reform which was previously mentioned. A majority of Democrats were quick to back Herring’s decision, especially United States Senator Tim Kaine (D) who tweeted a supportive message to his followers in honor of Herring. Many democrats are stating that Virginia should get back on the right side of history.
Although the reaction did not fall along clear party line, there is clear GOP back lash to whether Herring has the constitutional power to strike down the ban. State Senator Thomas A. Garrett Jr., (R-Goochland) explained that he is not in favor of Herring’s stance on the ban. However, regarding Herring’s authority, he stated, “I think it’s probably within his job description to do it.” Although Herring most likely will not get much support from the Republican-controlled Virginia Legislature, the attorney general will go forth to fight the ban on same-sex marriage.
Herring stated as “attorney general” he refuses to back a law that is in clear violation of the Constitutional rights of Virginia’s citizens. Herring explained that he has been informing Governor McAuliffe (D) as he backs the motion to strike down the ban. None of the attorneys general from the states that lifted bans on same-sex marriage have come forward to offer support to Herring and Virginia. Nonetheless, the Commonwealth’s legal battle is just the next in a series of state-based challenges regarding constitutional bans on same-sex marriage. If this case is sent all the way to the Supreme Court of the United States, the aforementioned attorneys general may step in to file amicus briefs in Herring’s favor.
Herring filed a brief to the federal court in Norfolk on Thursday. He noted the state government’s switch in stance regarding the case Bostic v. Rainey (2013) which challenged the 2006 amendment banning same-sex marriage. He also stated that the ban would remain in place while the case is under scrutiny in the Norfolk court; however, he would not defend it as constitutional. In the months to come Virginia will be a place to look for legal and political battle as the case moves through the court system. If the ban is deemed unconstitutional, Virginia will be the eighteenth state, plus the District of Columbia to lift the constitutional ban on same-sex marriage. Even though the Attorney General of Virginia has been in office less than a month, Herring is ready to go to work and fight the ban on same-sex marriage.
By: Alex Lemieux