“Virginia’s ban, quite simply, denies gay people the equal protection of the law,” he wrote in a 53-page motion.
Herring also referenced the U.S. Supreme Court’s landmark 1967 decision that struck down Virginia’s interracial marriage ban.
“In Loving v. Virginia, the court held that Virginia violated the Due Process and Equal Protection Clauses by refusing to allow an interracial couple to marry,” he wrote, noting the justices in subsequent decisions said one’s ability to marry is a fundamental right. “The court has also struck down laws discriminating against gay people, finding no legitimate governmental interest that could support the laws in question.”
Herring petitioned the justices to hear the case less than two weeks after the 4th U.S. Circuit Court of Appeals in Richmond upheld U.S. District Judge Arenda L. Wright Allen’s ruling that struck down Virginia’s same-sex marriage ban.
Prince William County Clerk Michèle McQuigg, who continues to defend the amendment, last week signaled she plans to petition the U.S. Supreme Court to hear the case.
Adam Umhoefer, executive director of the American Foundation for Equal Rights, which is representing Timothy Bostic and Tony London of Norfolk and Carol Schall and Mary Townley of Chesterfield in the lawsuit, told the Washington Blade earlier this week that he welcomes Herring’s decision to ask the justices to consider the issue.
The American Civil Liberties Union and Lambda Legal, who are representing two lesbian couples from the Shenandoah Valley in a case against Virginia’s same-sex marriage ban that has become a class action, expressed opposition to McQuigg’s motion.
“Senator McEachin is pleased and appreciative of all the efforts our Attorney General has made to ensure that all Virginians receive equal opportunity, justice and fairness,” said Abbi Easter, a spokesperson for state Sen. A. Donald McEachin (D-Henrico) who supports marriage rights for same-sex couples and other LGBT-specific issues in the commonwealth. “Virginians deserve to be able to marry the individual they love.”
More than two dozen federal and state courts have ruled in favor of nuptials for gays and lesbians since the U.S. Supreme Court in June 2013 struck down a portion of the Defense of Marriage Act.
Utah Attorney General Sean Reyes and attorneys representing Tulsa County (Okla.) Court Clerk Sally Howe Smith earlier this week petitioned the U.S. Supreme Court to hear cases challenging their respective state’s same-sex marriage bans after the 10th U.S. Circuit Court of Appeals upheld previous decisions that found them unconstitutional.
The 6th U.S. Circuit Court of Appeals in Cincinnati on Wednesday heard oral arguments in lawsuits challenging the constitutionality of same-sex marriage bans in Michigan, Ohio, Kentucky and Tennessee. Texas Attorney General Greg Abbott late last month filed an appeal with the 5th U.S. Circuit Court of Appeals in New Orleans that seeks to overturn a federal judge’s February ruling that struck down his state’s gay nuptials ban.
“The recent unbroken string of rulings in favor of marriage for same-sex couples and the American public’s embrace of marriage equality over the past few years shows that the country is ready for a Supreme Court decision vindicating same-sex couples’ freedom to marry,” said Joshua Block of the ACLU Lesbian Gay Bisexual and Transgender Project. “If the Supreme Court decides to take one of these cases, we are hopeful that the Court will affirm the unanimous consensus of lower courts and declare that states cannot deny same-sex couples this basic freedom.”
Herring announced shortly after taking office in January he would not defend Virginia’s marriage amendment that voters in 2006 approved by a 57-43 percent margin.
He has subsequently argued against it before Allen and the 4th Circuit.
“While we are disappointed that Attorney General Herring continues to act in opposition to the Constitution of Virginia and his sworn oath, I think everyone is aware that one of the marriage cases currently being argued, perhaps Virginia’s, will end up at the Supreme Court,” said Family Foundation of Virginia President Victoria Cobb, referring to 4th Circuit Judge Paul Niemeyer’s dissenting argument that same-sex marriage is not a fundamental right. “Hopefully, the U.S. Supreme Court will make a decision based on the law and not emotion, and correct the 4th Circuit’s error. We are grateful to Clerks Michelle McQuigg and (Norfolk Circuit Clerk) George Schaefer for their steadfast defense of the laws of Virginia and their willingness to stand for the citizens of the commonwealth in this case.”
“The importance of this issue cannot be measured simply by the number of jurisdictions with active litigation,” stressed Herring in his petition to the U.S. Supreme Court. “The question presented is vital to a large population of same-sex couples, to their children, and to their fellow Americans who believe that discriminating against gay people is both unfair and unconstitutional. They may fairly call this ‘the defining civil rights issue of our time.'”