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Virginia attorney general announces opposition to marriage equality ban, argues against it in federal lawsuit

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Mark Herring, Virginia’s new Democratic attorney general, announced today that the state’s marriage equality ban, in his opinion, is unconstitutional, and that his office is joining the plaintiff couples in a federal lawsuit seeking to have the law invalidated.  The Washington Post reported yesterday on the expected change in position:

The action will mark a stunning reversal in the state’s legal position on same-sex marriage and is a result of November elections in which Democrats swept the state’s top offices. Herring’s predecessor, Republican Ken Cuccinelli II, adamantly opposes gay marriage and had vowed to defend Virginia’s constitutional amendment banning such unions, which was passed in 2006 with the support of 57 percent of voters.

Herring, too, had voted against same-sex marriage eight years ago, when he was a state senator. But he has said that his views have changed since then and that on Thursday he will file a supportive brief in a lawsuit in Norfolk that challenges the state’s ban, said two people familiar with his plans.

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.

According to the Post, Herring had not previously communicated his plans to Republican lawmakers, who have considered proposing legislation that would let them intervene in the lawsuit to defend the state’s policy.

“Having exercised his independent constitutional judgment, consistent with his oath of office, the Attorney General has concluded that Virginia’s laws denying the right to marry to same-sex couples violate the Fourteenth Amendment to the UnitedStates Constitution,” Herring’s filing reads.  ‘The Attorney General will not defend the constitutionality of those laws, will argue for their being declared unconstitutional, and will work to ensure that both sides of the issue are responsibly and vigorously briefed and argued before the courts to facilitate a decision on the merits, consistent with the rule of law.”

Oral argument in the case, known as Bostic v. Rainey, is scheduled for next Thursday, January 30, in Norfolk.  Ted Olson and David Boies, the high profile lawyers who were at the center of the case to have California’s Proposition 8 invalidated and who joined the Bostic case last fall, will present arguments for the plaintiffs.  Another marriage equality case brought by the ACLU is currently pending in Harrisonburg, Virginia, although it is at a less advanced stage than the Bostic litigation.

Herring’s announcement is a classic manifestation of the ‘elections have consequences’ mantra–the Democrat won victory in his attorney general race against Republican Mark Obenshain by such a close margin that he was not officially declared the winner until December 18.  Had Obenshain won, he would likely have defended the equal marriage ban in court.  Instead, with a new governor and attorney general who are actively pushing for marriage equality in the state, Virginia has become one of the new battlefields for equal marriage rights.

You can read the state’s brief outlining Herring’s new position below.  (h/t to Kathleen and Equality Case Files)

For more information on Bostic v. Rainey from The Civil Rights Litigation Clearinghouse, click here.

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  • 1. Chuck from PA  |  January 23, 2014 at 8:13 am

    Elections do have consequences. i can hardly wait until Alison is the next governor in my home state.

  • 2. Dann  |  January 23, 2014 at 8:51 am

    Heads are exploding over at NOM! Lol

  • 3. Seth From Maryland  |  January 23, 2014 at 8:55 am


  • 4. Anthony  |  January 23, 2014 at 9:48 am

    Ditto for Nino Scalia!! He lives in VA!!

  • 5. RAJ  |  January 23, 2014 at 9:53 am

    Speaking of NOM,

    I see there's a "Financial Reports" link on their (relatively) new website. If you follow the link, you can access their Federal Forms 990 from 2007 – 2011, but the link to their Form 990 for 2012 is dead.

    and here is a small item from a few months back:

    "The National Organization for Marriage (NOM) has repeatedly refused to make its 2012 990s publicly available following their November 15 deadline – a direct violation of federal law. . . "

    Has this 990 been released yet publicly? If not, are they withholding it because of their suite against the IRS?

  • 6. Keith  |  January 23, 2014 at 10:12 am

    I been waiting to see their 2012 as well. I also looked for it on but its not there either.

  • 7. Eric  |  January 23, 2014 at 10:13 am

    They are withholding it because they claim to be a grassroots organization, yet receive the vast majority of their declining funding from a handful of donors. They don't want their bearing of false witness to be plainly obvious.

  • 8. Straight Ally #3008  |  January 23, 2014 at 7:47 pm

    And…AND…it's the home of the American madrasa, Liberty "University"!

  • 9. Jack  |  January 23, 2014 at 9:42 am

    What is does Herring mean in saying that he "will work to ensure that both sides of the issue are responsibly and vigorously briefed and argued before the courts"? Is he going to have folks from the AG's office argue the side he himself is not? And what about standing issues? SCOTUS ruled in Prop 8 that referendum proponents didn't have standing to defend the law. Who now has standing to defend the VA law?

  • 10. Benji in CA  |  January 23, 2014 at 10:03 am

    I wonder about the standing issue, too, as it was the crux of the SCOTUS decision to not accept the Prop 8 case. No clerk or lawyer would be foolish enough to bring suit as Chief Justice Roberts wrote in the Prop 8 case: “We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to,” Chief Justice John Roberts wrote in the majority opinion. “We decline to do so for the first time here.” So with Herring's announcement, once this Federal case is decided, what basis could there possibly be for an appeal? Other than gnashing of teeth, I hope that the issue will become moot to Virginians and that, surprise, life will go on pretty much as before.

  • 11. Eric  |  January 23, 2014 at 10:15 am

    The legislature may have standing.

  • 12. Walter  |  January 23, 2014 at 11:10 am

    I don't see a problem with standing because the clerks have standing. As long as one party has standing, others may support who would not on their own have standing.

  • 13. Bruno71  |  January 23, 2014 at 12:17 pm

    I've been meaning to look into Virginia law on the matter, but it appears that in one of the 2 VA cases (at least), a clerk is the defendant (and the governor was taken off). If one is a named defendant in a lawsuit and loses, I can't see how that person wouldn't have standing to appeal. So it may come down to who, under Virginia law, is ultimately responsible for marriage licenses. In California, the governor and AG control the clerks; in Oklahoma it's apparently the judiciary branch.

  • 14. Eric  |  January 23, 2014 at 1:27 pm

    The AG's brief touches on the topic. I haven't had a chance to read the entire document yet.

  • 15. Seth From Maryland  |  January 23, 2014 at 9:44 am

    according to herring even though he sent a brief in our support, the clerks of the circuit court in Norfolk and Prince William County are defendants in the suit

  • 16. grod  |  January 24, 2014 at 9:59 am

    Seth, its is insightful to see the AG drawing on Shelby, Black and Kean's analysis

  • 17. Seth From Maryland  |  January 23, 2014 at 9:45 am

    AFER Statement: The American Foundation for Equal Rights (AFER), the sponsor of Virginia’s leading marriage equality case, Bostic v. Rainey, today hailed the decision by the Commonwealth’s Attorney General, Mark Herring, that he will actively oppose the state’s onerous and discriminatory Constitutional ban on marriage equality. Attorney General Herring’s statement comes exactly one week prior to the first hearing in the Virginia marriage equality case of Bostic v. Rainey, which will be held at the U.S. District Court for the Eastern District of Virginia before Judge Arenda L. Wright Allen on Thursday, January 30, 2014 at 9 a.m. “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.”

  • 18. Seth From Maryland  |  January 23, 2014 at 9:46 am

    he ACLU and Lambda Legal react in a joint press release.
    “Today actions by Virginia’s chief legal officer continue 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.” “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. “We will continue to work to remove all remaining impediments so that Virginia can join the growing number of states where same-sex couples in loving, committed relationships are treated equally and can enjoy fully the benefits and responsibilities marriage provides."

  • 19. Seth From Maryland  |  January 23, 2014 at 9:46 am

    The Human Rights Campaign reacts.
    In an announcement today, Virginia Attorney General Mark Herring will say that his office will join the growing consensus of opinion in arguing that the state ban on marriage for lesbian and gay couples should be overturned. There are two cases in federal court challenging the Commonwealth’s marriage amendment and Herring is urging the courts to rule for the plaintiffs challenging that ban. In doing so, Herring reversed the position of his predecessor, Ken Cucinelli, who had argued strenuously to maintain the ban on marriage for same-sex couples. “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."

  • 20. Zack12  |  January 23, 2014 at 10:21 am

    Let's be blunt,the fact is this ban is so severe that it won't even allow private contracts for gay and lesbian couples.
    And as for animus being behind it,all you have to do is look to the co-creater of this amendment Bob Marshall.
    He has made it clear over and over again through his words and actions that views gays and lesbians with complete and utter contempt and has even said they don't belong in his state.
    That is the driving factor behind this ban above all else.

  • 21. Hayley  |  January 24, 2014 at 8:27 am

    Bob Marshall is vile. He's said that LGBTs all have STDs, women get raped because they are sinners, incest with children is "usually voluntary," long-term birth control like an IUD is "a testament to the intelligence and irresponsibility of women," and that people with mental disabilities are born because their mothers previously had an abortion. If anyone doesn't belong in Virginia, it's Bob Marshall and his hate.

  • 22. Ian S.  |  January 23, 2014 at 10:41 am

    Is there any input yet from experts re. standing?
    The only group I can see who might have standing is the legislature, but surely McAuliffe will veto the (prospective?) bill that would authorize the legislature to act.
    I don't know how vetos are overridden in VA, but the GOP does not have a supermajority in the Senate.

  • 23. Ian S.  |  January 23, 2014 at 11:23 am

    Got a reply from Lyle Denniston!
    "Attorney General Herring, in his legal memorandum filed today, said that "two other parties, represented by highly qualified counsel, will continue to defend the legality of Virginia's same-sex marriage ban..The plaintiffs sued the clerk of the Circuit Court for the City of Norfolk…in his official capacity. And the clerk of the circuit court of Prince William County.has been permitted to intervene and will also defend the ban…Circuit court clerks are constitutional officers who would have standing to appeal an injunction barring them from refusing to issue marriage licenses to otherwise qualified same-sex couples."

  • 24. Seth From Maryland  |  January 23, 2014 at 10:49 am

    Majority Of Voters In States Without Gay Marriage Support Marriage Equality

    A slim majority of voters living in states where gay and lesbian couples are not allowed to marry support gay marriage.
    According to a survey of 800 registered voters conducted in early December by the research firm Anzalone Liszt Grove and paid for by Freedom to Marry, 51 percent of respondents favor allowing gay couples to marry, while 41 percent remain opposed.
    “The findings of today's poll show that support for the freedom to marry in America is not limited to coastal states or politically liberal states, or even states that have ended discrimination,” Evan Wolfson, founder and president of Freedom to Marry, said in an emailed statement. “Instead, Americans all across the country have opened their hearts and minds and followed their values of fairness and freedom to move in support of the freedom to marry. This accelerating nationwide support lines up with the legal victories we've seen in more conservative states, including Utah and Oklahoma, and explains why the reaction to these court rulings was largely positive. America is ready for the freedom to marry.”
    Support is highest in the central states of Indiana, Kansas, Michigan, Missouri, Nebraska, North Dakota, Ohio, Pennsylvania, South Dakota and Wisconsin, where supporters outnumber opponents by a 23 point margin (59% support – 36% oppose). In the western states of Alaska, Arizona, Colorado, Idaho, New Mexico, Montana, Nevada, Oregon, Utah and Wyoming, 53 percent of voters support marriage equality, while 34 percent remain opposed. In the South – Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Virginia, West Virginia and Kentucky – voters are evenly split at 46 percent.
    A majority of voters (56%), regardless of their stance on the issue, believe it is likely that marriage equality will be legal in their state in a couple of years.
    And an overwhelming majority (78%) believes marriage equality will either have either a minimal impact or a positive impact on them personally. Twenty-one percent believe its legalization will have a negative impact on them personally.

  • 25. Rick O.  |  January 23, 2014 at 10:59 am

    What about money? The defendants are the clerks, but is it legal and/or ethical for them to take money from NOM, etc., for their defense? I think private money has been commingled with public in several instances (and The Sutherland Institute contracts in Utah stink to high heaven), but that seems, well, unseemly, and dangerous. Citizens United all over again?

  • 26. Eric  |  January 23, 2014 at 1:32 pm

    My husband and I were talking along similar lines last night. If these groups are going through the procurement process for outside counsel, it would be interesting to see what requirements are placed on vendors and whether groups like NOM, ADF, et. al. would qualify.

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