Mark Herring

The attorney general of Virginia announced this morning that his office will no longer defend the constitutionality of the state’s ban on same-sex marriage.

At a press conference, Attorney General Mark Herring told reporters his legal analysis of the state’s constitutional ban has determined the law violates the U.S. Constitution’s guarantee of equal protection and due process and that it discriminates against gay people on the basis of sexual orientation.

Addressing critics who say he should defend all state laws, regardless of whether he believes they are unconstitutional. Herring said that would be violating his oath and noted that his predecessors, including Republican Ken Cuccinelli, refused to defend other state laws they believed to be unconstitutional.

“Having determined after thorough and rigorous analysis that this unconstitutional law infringes on Virginia families,” said Herring, “I have a duty and authority to protect them and their rights. It does not mean the case will end or that the ban will go undefended or unenforced. Until the courts can rule on the matter, [the] state registrar Janet Rainey will continue to enforce the current ban, but neither she nor I will defend its constitutionality.”

The announcement comes fewer than three weeks after Herring was sworn in and just one week before a federal judge in Norfolk is set to hear arguments in the first of two lawsuits challenging the ban in federal court in Virginia.

A spokeswoman for Herring told the Richmond Times Dispatch, “We will file a brief that will change the commonwealth’s legal position and we will argue along with the plaintiffs.” The state’s solicitor general is expected to present Herring’s position when the court hears oral arguments.

Supporters of marriage equality were elated.

“It is a critical and important development when the attorney general—the keeper of the federal and state constitution in the commonwealth– joins us in arguing that barring same-sex couples from marriage is clearly unconstitutional,” said Greg Nevins, counsel in Lambda Legal’s Southern Regional Office based in Atlanta. Lambda and the ACLU are representing same-sex couples in one of two lawsuits currently challenging the Virginia ban in federal district courts.

“This is a great day for the Commonwealth of Virginia,” said Ted Olson, who is leading the other Virginia lawsuit. “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.”

In another dramatic development, plaintiffs’ attorneys on Wednesday submitted Tuesday’s Ninth Circuit Court of Appeals decision in SmithKline v. Abbott that found heightened scrutiny is required for cases involving disparate treatment based on sexual orientation. They ask the judge to apply that reasoning in the summary judgment hearing “or, in the alternative,” grant a preliminary injunction against enforcement of Virginia’s ban against the two plaintiff couples in this case.

Attorney General Herring’s announcement today represents a climax in an intense political drama over same-sex marriage in Virginia in recent months. Democrat Herring, who voted for the ban when he served as state senator in 2006, won election last November against Republican Mark Obershain, who opposes same-sex marriage, by fewer than 200 votes. In fact, Herring only last August shifted his position on allowing same-sex couples to marry, telling the Dispatch, “I would not want the state to tell my son or my daughter who they can and cannot marry.”

Just one day before Herring took office, then Republican Attorney General Ken Cuccinelli issued an official advisory opinion that the governor “may not direct or require any agency of state government to allow same-sex couples to receive joint marital status for Virginia income tax returns.”

Herring’s spokeswoman, Ellen Qualls, told the Dispatch, “The attorney general has a strong interest in the courts adjudicating this matter, which will ultimately be decided by the United States Supreme Court.”

            Next Thursday morning, Judge Arenda Wright Allen of the U.S. District Court for Eastern Virginia, is scheduled to hear arguments at a summary judgment hearing in Bostic v. Virginia. Famed attorneys Ted Olson and David Boies, who led the American Foundation for Equal Rights’ successful challenge against California’s Proposition 8, are heading the Norfolk legal team. It is not yet known whether today’s announcement might require postponement of that January 30 hearing.

The initial named defendants in Bostic are now State Registrar of Vital Records Janet Rainey and Norfolk Circuit Court Clerk George Schaefer.

The amended brief submitted by Herring under Rainey’s signature today states that “marriage is a fundamental right protected by the federal constitution” and that current Virginia law “improperly denies same-sex couples access to” that fundamental right, “without legal justification, and therefore violates the federal constitution guarantees of due process of law and the equal protection of the laws.”

The court also granted intervenor status to Prince William County Circuit Court Clerk Michele McQuigg on January 17, noting that plaintiffs did not object.

A second lawsuit, Harris v. Virginia, led by Lambda Legal and the ACLU, is pending before a U.S. District Court for the Western District.

“The Commonwealth of Virginia has too often argued on the wrong side,” said Herring, referring to historic cases on desegregation in 1954, on interracial marriage in 1967, and on women entering the Virginia Military Institute in 1996.

The same legal principles that applied in those cases apply in this case today,” said Herring.

Referring to his 2006 vote in favor of the ban on same-sex marriage, Herring was blunt.

“I was wrong to stop short of marriage equality,” said Herring, but he added his decision today “is not based on my policy preferences” but “based on my thorough analysis of applicable law and the constitutional questions raised by this case.”

“Virginia is, in many ways, the cradle of democracy,” said Herring, noting that many of the nation’s early presidents and authors of key government documents, including the constitution, were written by Virginians.

“Too many times in our history our citizens have had to lead the way on civil rights while our leaders have stood against them,” said Herring. “It is time for the Commonwealth to be on the right side of history and the right side of law.”