Virginia’s attorney general said Thursday that he won’t defend the state’s ban on gay marriage and will seek to have the law declared unconstitutional, comparing it to the commonwealth’s prohibition on interracial unions that the U.S. Supreme Court rejected 47 years ago.
Virginia’s Mark Herring, who was sworn in to office less than two weeks ago, is the fourth attorney general in the U.S. to refuse to defend such a law and the first in the South to do so.
“Virginia has argued on the wrong side of some of our nation’s landmark cases - in school desegregation in 1954, on interracial marriage” in 1967, Herring said in statement. “It’s time for the commonwealth to be on the right side of history and the right side of the law.”
Gay marriage is legal in 17 U.S. states and the District of Columbia. Federal appeals courts are grappling with the issue after the U.S. Supreme Court in June left standing an order ending California’s ban on same-sex marriage without saying whether similar laws also should be struck down.
A lawyer for Herring filed papers in federal court in Norfolk changing the state’s position and ending Herring’s role as lead defender of Virginia’s constitutional ban and statutory prohibition on same-sex marriage. Virginia’s solicitor general, Stuart Raphael, will represent the state in the suit, according to court papers.
The ban will be defended by a lawyer for Norfolk Circuit Court Clerk George Schaefer, whose office denied a marriage license to two of the plaintiffs in the case.
Herring said the ban will be enforced in the meantime, meaning clerks will continue to deny marriage licenses to same-sex couples.
The Richmond, Va .-based Family Foundation criticized Herring, saying he should have made his intentions clear while campaigning for office.
“It’s frightening that politicians like the attorney general feel that they can pick and choose which aspects of the Constitution they deem worth to defend and apply,” the group, which opposes gay marriage, said in a statement.
Some Republican legislators said Thursday that they were exploring ways to defend the ban without Herring’s help. Herring’s most ardent opponents sought to take legal action against the attorney general for what they described as his misuse of the office.
The National Organization for Marriage, which opposes same-sex unions, called for Herring’s impeachment on grounds of alleged “malfeasance” and “neglect of duty,” though legislators did not go that far.
“I don’t know what the difference between a dictatorship and this is,” said state Sen. Richard Black, R-Loudoun.
Democrats and gay-rights supporters cheered the move as a victory for civil rights.
“Today is a proud day to be a Virginian,” said state Sen. Adam Ebbin, D-Alexandria, the first openly gay member of the General Assembly.
“We’re pleased to welcome the attorney general and the commonwealth to the right side of history,” Claire Guthrie Gastanaga, executive director of the American Civil Liberties Union of Virginia, said in an emailed statement.
Gov. Terry McAuliffe said through a spokesman that he also supports Herring.
As a state senator, Herring supported Virginia’s 2006 voter-approved constitutional amendment defining marriage as the union of a man and woman.
But he said he decided after a “thorough legal review” that it is unconstitutional, and he will join gay couples in two federal lawsuits challenging the ban.
In a court filing, Herring compared Virginia’s ban on same-sex marriages to prohibitions on interracial unions, which the U.S. Supreme Court struck down in the 1967 case Loving v. Virginia.
“Loving rejected the same arguments offered in support of the marriage ban here,” Herring said.
Herring’s decision follows similar steps by attorneys general Kamala Harris of California, Lisa Madigan of Illinois and Kathleen Kane of Pennsylvania, all Democrats. Gay marriage is legal in California and will become so in Illinois on June 1. It is the subject of a Pennsylvania court fight.
In June, the U.S. Supreme Court overturned part of the federal Defense of Marriage Act. In December, New Mexico, the only state without a law specifically allowing or prohibiting gay marriage, was barred by its highest court from denying same-sex couples the right to marry.
Information for this article was contributed by Steven Church and Andrew Harris of Bloomberg News; by Steve Szkotak, Alan Suderman and Mark Sherman of The Associated Press; and by Laura Vozzella of The Washington Post.
Front Section, Pages 4 on 01/24/2014