The decision by Virginia’s new attorney general to drop the office’s defense of the state’s ban on same-sex marriage marks an important victory for gay rights activists, but it is unlikely to derail legal efforts to uphold the constitutional amendment still pending in court.
In a surprise move, Attorney General Mark Herring announced on Thursday that lawyers with his office would no longer defend the constitutionality of the ban. He added that state officials would nonetheless continue to enforce the law (by refusing to issue marriage licenses to same-sex couples) until the dispute is resolved in the courts.
The announcement came less than two weeks after Mr. Herring took office.
Critics immediately attacked the move as a violation of Herring’s oath of office to uphold Virginia’s laws and its constitution. Herring said his actions were in full accord with his oath, which includes a pledge to uphold the guarantees of the US Constitution.
The attorney general said he had conducted a review of the pending litigation over the marriage ban and had determined that the legal position of the prior attorney general was wrong. Herring, a Democrat, replaced Kenneth Cuccinelli, a Republican, who ran unsuccessfully for governor.
The formal announcement of the change came in a legal filing with the federal judge in Norfolk, Va., who is presiding over a challenge to the marriage ban filed by two same-sex couples.
The notice says in part: “Having exercised his independent constitutional judgment, consistent with his oath of office, 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.”
The notice adds: “The Attorney General will not defend the constitutionality of those laws, will argue for their being declared unconstitutional, and will work to ensure that both sides of the issue are responsibly and vigorously briefed and argued before the courts to facilitate a decision on the merits, consistent with the rule of law.”
Specifically, Herring concluded that Virginia’s same-sex marriage ban is unconstitutional because it violates what he says is a fundamental right under the US Constitution for couples to marry – regardless of sexual orientation or gender. He also said the ban violates the right of same-sex couples to equal protection and equal treatment under the US Constitution.
In contrast to Herring’s legal conclusion, neither the US Supreme Court nor any federal appeals court has recognized a fundamental right to same-sex marriage – at least not yet. But the high court and several appeals courts have established equal protection rights for same-sex couples.
In a statement released on Thursday, Herring said he swore an oath to uphold the US Constitution and the Virginia constitution.
“Marriage is a fundamental right being denied to some Virginians, and the ban unlawfully discriminates on the basis of both sexual orientation and gender,” he said.
He said the time had arrived to take a stand. “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], and in 1996 on state-supported single-gender education at VMI [Virginia Military Institute],” he said.
“It’s time for the Commonwealth to be on the right side of history and the right side of the law,” Herring said.
In a legal memo to the federal court in Norfolk, lawyers with the attorney general’s office said it is “rare” though not unprecedented for a Virginia attorney general to decline to defend a constitutional challenge to an enacted law.
The Virginia constitutional amendment banning same-sex marriage was adopted by statewide vote in 2006, with 57 percent of voters approving and 43 percent opposed.
Recent public opinion polls suggest opposition to same-sex marriage in Virginia had fallen significantly.
Herring’s actions are similar to a stance taken by President Obama and US Attorney General Eric Holder when they announced that the administration would no longer argue in court to uphold the federal Defense of Marriage Act, which banned same-sex married couples from receiving federal marriage benefits.
The law was struck down by the Supreme Court last June.
In addition, the attorneys general of California and Pennsylvania, both Democrats, announced that they would not defend same-sex marriage bans in their states after deeming those measures unconstitutional.
In the legal memo to the judge in Norfolk, the attorney general’s office argued that the judiciary had an obligation to protect the civil rights of gay men and lesbians rather than wait for elected bodies to act.
“Some argue that courts should wait to decide the constitutionality of same-sex-marriage bans because polls suggest that popular support for marriage equality is increasing, which could someday lead to corrective action by the legislature and the electorate,” the memo says.
“That argument overlooks the gravity of the continuing harm being inflicted right now on Virginia’s same-sex couples who wish to marry,” it says.
The attorney general’s office added: “When core civil rights are at stake, as in this case, the judiciary has a constitutional duty to act. And it should act now.”
Seventeen states and the District of Columbia currently recognize same-sex marriages. Thirty states – including Virginia – ban the practice by statute or constitutional amendment.