Va. Attorney General Mark Herring files brief opposing same-sex marriage ban

Story first appeared on the WashingtonPost.com.

RICHMOND — Virginia Attorney General Mark R. Herring announced Thursday that he believes the state’s ban on same-sex marriage is unconstitutional, and he joined two same-sex couples in asking a federal court to strike it down.  Contact a New York Gay Marriage Lawyer for more information.

The action, which Herring (D) made with the support of Gov. Terry McAuliffe (D), marks a stunning reversal in the state’s legal position on same-sex marriage and is a result of November’s elections, in which Democrats swept the state’s top offices.
Democrats cheered the move as a victory for civil rights while Republicans blasted it as dereliction of the attorney general’s duty to defend the state constitution. With the support of 57 percent of voters, Virginia amended its constitution in 2006 to ban gay marriage.

Herring said his chief duty is to defend the U.S. Constitution.  Contact a Lansing Divorce Lawyer for help with your separation.

“The Supreme Court is clear: The United States Constitution is the law of the land, the supreme law of the land,” Herring said at a press conference. “I believe the freedom to marry is a fundamental right and I intend to ensure that Virginia is on the right side of history and the right side of the law.”

State Sen. Adam P. Ebbin (D-Alexandria), the first openly gay member of the General Assembly, was among those who applauded Herring’s move.

“Today is a proud day to be a Virginian,” he said. “We are the birthplace of civil liberties, and it’s exciting to see Virginia getting this right.”

But some Republicans said Herring made an outrageous attempt to thwart the will of the people. After winning an election largely based on criticizing conservative Republican Ken Cuccinelli II’s activist tenure as attorney general, critics said, Herring seems to be taking the law into his own hands for liberal ends.

“I don’t know what the difference between a dictatorship and this is,” said state Sen. Richard H. Black (R-Loudoun).

Some GOP legislators said they would look for a way to thwart Herring’s action. Anticipating Herring’s move, the General Assembly is already considering legislation to fund a legal defense for any laws that the attorney general chooses not to defend. They note that Cuccinelli appointed outside counsel to represent the state in a lawsuit over a school-takeover law that the Republican believed was unconstitutional.

“I’m unclear on the mechanism to get [legal opposition to Herring’s move] started, but it will be something that I’m sure will be researched over the next week or so,” said Sen. Stephen D. Newman (R-Lynchburg).

Reaction did not fall strictly along party lines.

“I don’t think he should do it, but I think he can do it, and I think it’s probably within his job description to do it” if he thinks the ban conflicts with the U.S. Constitution, said state Sen. Thomas A. Garrett Jr. (R-Goochland), a former prosecutor.  A Novi Law Firm is watching the story closely.

Cuccinelli, who lost a bid for governor to McAuliffe, adamantly opposed same-sex marriage and vowed to defend Virginia’s constitutional amendment banning such unions.

Herring, too, 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 he filed a brief Thursday stating Virginia’s reversal in a lawsuit in Norfolk that challenges the state’s ban.

“The Attorney General has concluded that Virginia’s laws denying the right to marry to same-sex couples violate the Fourteenth Amendment to the United States Constitution,” the brief states.

At a news conference in Richmond, Herring said that the state has been on the wrong side of landmark legal battles involving school desegregation, interracial marriage and single-sex education. He made the case that Virginia should be on the right side of the law and history in the battle over same-sex marriage.

“As attorney general, I cannot and will not defend a law that violates Virginians’ fundamental constitutional rights,” he said.

Herring said he has been briefing McAuliffe, and the governor backs the move. McAuliffe did not immediately comment, but spokesman Brian Coy confirmed Herring’s account that the governor supports it.

Republicans reacted to the news swiftly Thursday by accusing Herring of failing to fulfill a central duty of his office — defending the state constitution.

“Not two weeks ago I watched the attorney general swear an oath before God and the people of Virginia to preserve, protect and defend our constitution,” Del. C. Todd Gilbert (R-Shenandoah) said. “It didn’t take him long to find a way out of that.”

In a statement, House Speaker William J. Howell (R-Stafford) said: “I am very concerned about his announcement today and the dangerous precedent it sets with regard to the rule of law. The Attorney General has a constitutional and statutory obligation to enforce and defend the duly adopted laws and Constitution of Virginia. This is not an obligation that can be taken lightly. The Attorney General’s decision today demonstrates a great deal of disregard for that obligation, as well as the legislative and democratic processes by which those laws are adopted.”

Herring used much of the brief to defend his position.

“When the Attorney General, exercising his independent constitutional judgment, concludes that a provision of the Virginia Constitution (or Act of the General Assembly) violates the federal Constitution, he is not duty bound to defend it,” the brief states. “Although the practice is rare for Virginia Attorneys General, it is not unprecedented.”

Herring said the Republican proposal to allow them to defend the law in court is unnecessary. Norfolk clerk George E. Schaefer is represented by a private lawyer paid by the state’s risk management department. Prince William clerk Michele B. McQuigg, who asked to intervene in the case, is represented by the conservative legal group Alliance Defending Freedom.
anet Rainey, the state registrar of vital records, is also a defendant. Although Herring urged the court to strike down the ban, she will continue to enforce it until the courts act.

Democrats are sensitive to charges that it is Herring’s duty to defend Virginia’s law regardless of whether he agrees with it. They point out that Cuccinelli refused to defend one of then-Gov. Robert F. McDonnell’s education reforms in court, saying he believed that the legislation (for state takeovers of failing schools) was unconstitutional.

But generally, supporters were quick to cheer Herring’s move. U.S. Sen. Timothy M. Kaine (D-Va.) tweeted this message to his followers: “Thank you @MarkHerringVA for fighting VA’s same-sex marriage ban! I agree — time to bring VA on to the right side of history.”

The move in Virginia is part of a quickly changing legal landscape reshaped by the Supreme Court’s rulings in two cases on same-sex marriage in June.

In one, United States v. Windsor, the court voted 5 to 4 to find unconstitutional a key part of the Defense of Marriage Act, which withheld federal recognition of same-sex marriages performed where they are legal and denied federal benefits to those in such unions.

In the other, it allowed to stand a federal judge’s opinion that California’s Proposition 8, which bans same-sex marriage, was unconstitutional. The court ruled that the case was not before it in a way that allowed a ruling on the merits.

The justices sidestepped a critical question: whether state bans on same-sex marriage violate the Constitution’s guarantees of equal protection and due process.

But federal judges in Utah and Oklahoma have said that the reasoning used by the court majority meant that constitutional amendments in those states banning same-sex unions cannot stand. Gay marriages took place in Utah, but both decisions are now stayed pending appeal.

The highest courts in New Jersey and New Mexico have held that gay couples have the right to be married there. The District of Columbia and 17 states — including Maryland, but not Utah or Oklahoma — now allow such unions.
The Obama administration took a position similar to Herring’s when it announced it would not defend DOMA, which Congress had passed in 1996 and was then signed into law by then-President Bill Clinton. Attorney General Eric H. Holder Jr. joined the legal challenge against the key part of the law, and House Republicans hired a lawyer in an unsuccessful bid to save it.

Similarly, Democratic attorneys general in other states have said they think their bans are unconstitutional. Democrats in California refused to defend Proposition 8. And last summer, Pennsylvania Attorney General Kathleen Kane bowed out of challenges to her state’s law.

Herring, whose race against Republican Mark D. Obenshain was so close it was not decided until Dec. 18, has been in office just two weeks. But he faced a tight deadline in deciding whether to change the state’s legal position.

U.S. District Judge Arenda L. Wright Allen has scheduled oral arguments for Jan. 30 in the Norfolk case. It received a jolt of attention last fall when lawyers Theodore B. Olson and David Boies, who brought the federal challenge of Proposition 8, announced that they were joining the plaintiffs’ side.

In addition, the American Civil Liberties Union is challenging the Virginia ban in a federal suit in Harrisonburg. That case is not as far along.

Virginia has been a particularly appealing place for a challenge by supporters of gay rights because of the Supreme Court’s 1967 decision in Loving v. Virginia, which struck down laws against interracial marriage. Those who support same-sex unions often draw a parallel.

Herring made the same point. “Loving teaches that the Fourteenth Amendment protects the fundamental right to marry even if the way in which it is practiced would have surprised the framers or made them uncomfortable,” he wrote.