By Chris Hoenig
Anti-gay-marriage activists can no longer count on Virginia.
Legal challenges of the state’s same-gender-marriage ban will no longer be defended by the state, and Attorney General Mark Herring will instead join those trying to strike the ban, his office announced Thursday. “After a thorough legal review of the matter, Attorney General Herring has concluded that Virginia’s current ban is in violation of the U.S. Constitution and he will not defend it,” spokesman Michael Kelly wrote in an email to The Associated Press.
Herring has been in office for less than a month, having defeated anti-LGBT and anti-abortion activist Ken Cuccinelli, who had been the state’s attorney general since 2010. Herring’s election marked a shift in the state government in the Old Dominion, with Democrat Terry McAuliffe winning the governor’s office previously held by Republican Bob McDonnell. Virginia’s House of Delegates maintains a strong Republican majority, while the GOP holds a slim advantage in the State Senate.
Gay marriage was banned in Virginia in a 2006 referendum when 57 percent of voters cast ballots denying LGBT couples the right to marry. But polls last year showed the landscape changing—a Quinnipiac poll in July found Virginians in favor of gay marriage by a 50 percent to 43 percent margin.
Herring’s decision comes just a week after a federal judge struck down Oklahoma’s ban on same-gender marriage. Last year, a federal judge did the same to Utah’s marriage-equality ban, while Pennsylvania Attorney General Kathleen Kane also announced she would not defend the Keystone State’s same-gender-marriage ban, calling it unconstitutional.
Indiana’s same-gender-marriage ban, which has been under question, could be reinforced after House Speaker Brian Bosma moved a bill that would define marriage as being between one man and one woman from the House Judiciary Committee to the more-conservative House Elections Committee. Three Judiciary Committee Republicans had appeared reluctant to move the bill forward, where a vote by the full House could put it on ballots in Indiana this November. Without passage, the bill would have to wait until at least 2016.
Same-gender marriage is currently legal in 17 states.
Lawsuits against Virginia’s gay-marriage ban have the backing of the group behind the successful effort to overturn California’s Proposition 8 ban on same-gender marriage. The American Foundation for Equal Rights, which led the fight in California, is funding the lawsuit, which is being led by the same lawyers who argued the California case: David Boies and Theodore B. Olson. “This case is about state laws that violate personal freedoms, are unnecessary government intrusions, and cause serious harm to loving gay and lesbian couples,” Olson had said.
Olson and Boies are representing two couples in the main legal challenge. Timothy Bostic and Tony London had a marriage application denied by the Norfolk Circuit Court Clerk’s office last July, while Carol Schall has been denied the right to adopt her wife’s daughter because state law prohibits adoption by same-gender couples. Schall and Mary Townley were legally married in California in 2008.
While Herring is filing on behalf of the two couples, the state’s same-gender marriage ban—which is being defended now by two county court clerks—remains in effect until the courts say otherwise.