January 23, 2014 | by Michael K. Lavers
Mark Herring to challenge Virginia same-sex marriage ban

Mark Herring, gay news, Washington Blade

Virginia Attorney General Mark Herring (Photo courtesy of Herring for Attorney General)

Virginia Attorney General Mark Herring on Thursday announced he will not defend the state’s same-sex marriage ban.

Herring in a statement declared the gay nuptials ban unconstitutional. He also said he will join a federal lawsuit challenging it that two same-sex couples from Norfolk and Richmond — Timothy Bostic and Tony London and Carol Schall and Mary Townley — filed last year.

“Virginia has argued on the wrong side of some of our nation’s landmark cases,” said Herring, noting the U.S. Supreme Court’s Loving v. Virginia decision that struck down interracial marriage bans and other issues. “It’s time for the commonwealth to be on the right side of history and the right side of the law.”

State Del. Scott Surovell (D-Fairfax County) welcomed Herring’s announcement.

“Elections have consequences and the U.S. Supreme Court’s Windsor decision makes clear that we must give full faith and credit to non-Virginia gay marriages,” the Fairfax County Democrat told the Washington Blade after the Post published its story. “Attorney General Herring is simply enforcing the law of the land as reflected [and] interpreted by the U.S. Supreme Court six months ago.”

Equality Virginia Executive Director James Parrish described Herring’s decision as “truly commendable.”

“This is a new day for loving gay and lesbian couples who want to marry the person they love in the state they call home,” Parrish told the Blade. “Thanks to Mark Herring, today we are one step closer to equality and fairness for LGBT Virginians.”

State Sen. Adam Ebbin (D-Alexandria) also welcomed the former Loudoun County senator’s announcement.

“We’re the birthplace of the Bill of Rights, but unfortunately also the place that outlawed interracial marriage,” Ebbin told the Blade. “Tt’s nice to be getting it right and be on the right side of history and not move backwards.”

Pat Mullins, chair of the Republican Party of Virginia, blasted Herring over his decision not to defend the commonwealth’s same-sex marriage ban.

“If Mark Herring doesn’t want to defend this case, he should resign, and let the General Assembly appoint someone who will,” said Mullins. “Mark Herring owes the people of Virginia no less.”

National Organization for Marriage President Brian Brown said state lawmakers should impeach Herring for what his organization described as a “lawless” decision.

“The attorney general swore an oath that he would ‘support… the Constitution of the commonwealth of Virginia’ and faithfully discharge his duties, which include defending duly enacted laws like the state’s marriage amendment,” said Brown. “Yet now Attorney General Herring is participating in a lawsuit against the very people he is sworn to represent, the citizens of Virginia who preserved marriage in their constitution. This malfeasance and neglect of duty is not only a disgrace, it’s an impeachable offense under the constitution.”

House Speaker Bill Howell (R-Stafford County) is among those who also sharply criticized Herring.

“What we really have here is a breakdown of the rule of law,” said state Sen. Dick Black (R-Loudoun County) during an interview with Bruce DePuyt of News Channel 8.

The announcement comes less than two weeks after Herring took office alongside Gov. Terry McAuliffe and Lieutenant Gov. Ralph Northam.

Former Attorney General Ken Cuccinelli, who ran against McAuliffe, vehemently opposed marriage rights for same-sex couples in the commonwealth. The former GOP gubernatorial candidate wrote in a non-binding opinion to state Del. Bob Marshall (R-Prince William County) one day before leaving office that a governor may not require any state government agency to allow gays and lesbians to receive “joint marital status” for state income tax returns.

Herring in 2006 voted against marriage rights for same-sex couples while in the state Senate. Virginia voters the same year approved a state constitutional amendment banning gay nuptials by a 57-43 percent margin.

State Del. Mark Cole (R-Fredericksburg), chair of the Virginia House of Delegates Privileges and Elections Committee, earlier this month announced it will not consider any proposed resolutions that sought to repeal the marriage amendment during the 2014 legislative session.

The House Civil Law Subcommittee on Monday narrowly struck down Surovell’s bill that would have repealed the commonwealth’s statutory same-sex marriage ban.

State Del. Rob Krupicka (D-Alexandria) earlier this month introduced a proposed resolution that sought to amend the state constitution to allow same-sex marriage in Virginia. The Alexandria Democrat’s proposal would have also allowed the commonwealth to recognize gay nuptials legally performed in neighboring D.C. and Maryland and other jurisdictions.

Judge Arenda L. Wright Allen of the U.S. District Court for the Eastern District of Virginia in Norfolk is scheduled to hold a hearing in the Bostic case on Jan. 30. The American Civil Liberties Union, Lambda Legal and the ACLU of Virginia in August filed a class action federal lawsuit on behalf of two lesbian couples who are seeking marriage rights in the state.

Michael K. Lavers has been a staff writer for the Washington Blade since May 2012. The passage of Maryland's same-sex marriage law, the HIV/AIDS epidemic, the burgeoning LGBT rights movement in Latin America and the consecration of gay New Hampshire Bishop V. Gene Robinson are among the many stories he has covered since his career began in 2002. Follow Michael

4 Comments
  • Elections matter. Justice matters. The Attorney General race was exceptionally close, requiring a recount. Your vote matters.

    • So true, Gordon. I believe Herrring ended up winning by 9 votes in the end!

      Let’s hope with at least 4 years of Democrats controlling the Adminisration and Senate (hopefully), there might be some good legislaton created and bad legislation abandonned.

  • In the campaign preceding the elections in Virginia of November 2013, the Democratic candidates for governor, lieutenant governor, and attorney general – respectively Terence McAuliffe, Ralph Northam, and Mark R. Herring – made clear they supported equal rights for sexual minorities in general and marriage equality in particular. They won the election (and the Libertarian candidate for governor, Robert Sarvis, who also declared his support for marriage equality during the campaign, got 145,773 votes).

    On 19 January 2014, Victoria Cobb, president of the Family Foundation of Virginia, announced that “'I'd like to see the attorney general, as the person elected to defend our laws, give a staunch defense of it. 'That's what the top attorney should be doing."

    On 22 January 2014, the attorney general of Virginia announced that not only will he not defend the ban in Federal lawsuits but he will also support parties seeking to have it struck down.

    Victoria, put aside your obsession with the movement for marriage equality, which is now on a roll that you cannot stop, and recognize the obvious: the legalization of same-gender civil marriage is no threat to different-gender marriage because same-gender civil marriage is intended to complement, not replace, different-gender civil marriage.

    Ponder also the fact that the real problems of marriage in the United States are at least: (1) divorce in families headed by different-gender parents, which often has bad consequences for their children, (2) spousal abuse in families headed by different-gender parents, which often has bad consequences for their children; (3) parental abuse of children in families headed by different-gender parents, which by definition has bad consequences for the children; (4) teenage pregnancies among heterosexual females, which often has bad consequences for their children; and (5) the presence of children in orphanages and in foster care who remain unadopted, probably all of whom are the offspring of different-gender parents.

    Replace the word “different-gender” by “same-gender” in the previous paragraph and the number of instances of each of the five phenomena plunges dramatically (probably being zero in the case of teenage pregnancies). For example, we know of just one instance (in Connecticut) in which a same-gender married couple has been accused of abusing its children. Although there could be more such instances (if you know of any, please tell us where they are documented), the total number probably constitutes a tiny percentage of the number of same-gender couples with children (in contrast to the significantly higher percentage of different-gender couples found guilty of abusing their children).

    [For the Connecticut instance, see Erik Ortiz, “Gay Connecticut couple accused of raping adopted children will face trial,” Daily News, New York, 7 April 2013, available too on line; an instance of same-gender parental abuse in Massachusetts was reported to us, but without any bibliographical reference.]

    Ponder too the fact that same-gender couples are helping to clean up a mess made almost exclusively by different-gender couples (problem [5]): by adopting children, same-gender couples are reducing the number of children in orphanages and in foster care. Better a child have two mothers or two fathers than no mother and no father at all.

    On balance, therefore, it seems that the Family Foundation of Virginia and the many other organizations trumpeting their earnest desire to “defend marriage” are, in their endeavor to root out evil, looking in the wrong direction.

  • Guess what Brian Brown? The US Constitution trumps State Constitutions every time.

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