Virginia Attorney General Mark Herring told the Washington Blade on Thursday he decided not to defend the state’s same-sex marriage ban because he wants to ensure the commonwealth is on “the right side of history.”
“This is a key issue that the [U.S.] Supreme Court is going to have to decide,” said Herring. “If the facts were presented to the Supreme Court, they would strike it down. And it’s important that Virginia be on the right side of history and on the right side of the law.”
Herring spoke with the Blade hours after he declared Virginia’s constitutional amendment that bans same-sex marriage unconstitutional. His office subsequently filed an official notification with the U.S. District Court for the Eastern District of Virginia that said the commonwealth’s position in the case that Timothy Bostic and Tony London of Norfolk and Carol Schall and Mary Townley filed last year has changed.
“Having duly exercised his independent constitutional judgment, the attorney general has concluded that Virginia’s laws denying the right to marry to same-sex couples violates the Fourteenth Amendment to the United States Constitution,” reads the aforementioned document.
Herring told the Blade he feels that Virginians can feel proud of the role their state played in the country’s founding. He said, however, the state was on the “wrong side” of the U.S. Supreme Court’s 1967 Loving v. Virginia decision that struck down the commonwealth’s interracial marriage ban and other landmark civil rights cases.
“We’re not going to be on the wrong side of the law this time,” said Herring.
Herring in 2006 voted against same-sex marriage while in the Virginia Senate. Voters later that year approved the gay nuptials ban by a 57-43 percent margin.
“I was speaking out against forms of discrimination against people on the basis of sexual orientation, but I did not support marriage equality at that time and I was wrong for that,” Herring told the Blade. “Almost immediately after that I saw how that vote and how that measure really hurt a lot of people and that it was very painful for a lot of people.”
Herring said he saw the issue “very differently” after talking with his family, constituents, friends and neighbors. He added his religion that originally prompted him to oppose marriage rights for same-sex couples helped further shape his position.
“It takes me to a more equal place and a better place,” said Herring. “I wouldn’t want the state telling my son or my daughter who they can and cannot marry.”
A poll the Human Rights Campaign commissioned last June found 55 percent of Virginians support marriage rights for same-sex couples.
HRC President Chad Griffin, Equality Virginia Executive Director James Parrish, ACLU of Virginia Executive Director Claire Guthrie Gastañaga and state Del. Adam Ebbin (D-Alexandria) are among those who applauded Herring’s announcement. Republicans and social conservatives blasted the former state senator from Loudoun County.
“If Mark Herring doesn’t want to defend this case, he should resign and let the General Assembly appoint someone who will,” said Pat Mullins, chair of the Republican Party of Virginia. “Mark Herring owes the people of Virginia no less.”
House Speaker Bill Howell (R-Stafford County) said Herring’s announcement sets a “dangerous precedent” with “regard to the rule of law.” National Organization for Marriage President Brian Brown urged Virginia lawmakers to impeach the attorney general.
“There are people who are going to attack me and try to say ‘well it’s about the duty of the attorney general (to defend the marriage ban,)” Herring told the Blade. “In fact what they’re really upset about is that they disagree with marriage equality. And that’s their right, but it’s not the law.”
Herring’s predecessor, Ken Cuccinelli, vehemently opposed marriage rights for same-sex couples while in office. State Sen. Mark Obenshain (R-Harrisonburg), who lost to Herring in last year’s attorney general race by fewer than than 1,000 votes, also did not support gay nuptials.
“I’m less focused on trying to draw a contrast with my predecessor,” Herring told the Blade when asked to comment on Cuccinelli’s opposition to nuptials for gays and lesbians. “I am just making sure I get the law right and fulfill my duties as attorney general as best I can and make sure that we come out on the correct side of this legal case.”
The ACLU, Lambda Legal and the ACLU of Virginia in August filed a class action federal lawsuit on behalf of two lesbian couples from the Shenandoah Valley who are seeking marriage rights in the commonwealth. The first hearing in this case is expected to take place in the coming months.