AG: Gay marriage ban unconstitutional

VA Attorney General Mark Herring
VA Attorney General Mark Herring

RICHMOND, Va. (WAVY) – Attorney General Mark Herring has announced he believes Virginia’s ban on same-sex marriage is unconstitutional.

Tim Bostic, a professor at Old Dominion University, and his partner Tony London filed a lawsuit in federal court in Norfolk last year challenging the same-sex marriage ban. The ban was put in place in 2006 when a constitutional amendment was approved by Virginia voters.

Click here to read the lawsuit (.pdf)

“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 violate the Fourteenth amendment to the United States Constitution,” the notice of change in legal position. “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 issues are responsibly and vigorously briefed and argued before the courts to facilitate a decision on the merit’s, consisted with the rule of law.”

A memorandum accompanying the notice lists several reasons why Herring came to his decision. One of those reasons mentions how former Attorney General Jerry Kilgore joined with 43 other states in 2003 to explain how an attorney general is duty-bound to challenge a statute he or she believes to be unconstitutional.

“The propriety of not defending unconstitutional law is well established under the federal constitution,” the memorandum states. “It was espoused by our founding fathers, including Thomas Jefferson and James Wilson. The Department of Justice has consistently advised the Executive Branch that it is appropriate for the president to decline to enforce a statute that he believes to be unconstitutional, describing that proposition as ‘uncontroversial’ and ‘unassailable.’”

Click here to read the 25-page memorandum (.pdf)

President of the Family Foundation of Virginia, Victoria Cobb, released the following statement on the announcement:

The decision by the Attorney General is not surprising, but it is disappointing and frightening.  It’s disappointing that he wouldn’t be clear about his intentions on this issue while campaigning for the office.  More importantly, 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.  Whether one agrees with the marriage amendment or not, the idea that over a million Virginia citizens can be left defenseless by the Attorney General after legally voting for an amendment that he himself supported is chilling.

WAVY News’ Rachel West asked Herring about his position on marriage equality about a week before the election in a candidate profile. He told WAVY.com he supported gay marriage and explained what he would do if elected:

There’s some court cases underway in Virginia right now and what I will do as attorney general is bring together the legal experts in the attorney general’s office to review all of those case precedents, and I gotta tell you, frankly I am skeptical that Virginia’s gay marriage ban can withstand constitutional scrutiny. (this particular response is about 5 minutes and 45 seconds into the interview)

Speaker William J. Howell with the Virginia House of Delegates released the following statement Thursday morning ahead of Herring’s announcement in Richmond:

Less than two weeks ago, Mark Herring took an oath and swore to preserve, protect and defend the Constitution of Virginia. I am very concerned about his announcement today and the dangerous precedent it sets with regard to the rule of law.

The Attorney General has a constitutional and statutory obligation to enforce and defend the duly adopted laws and Constitution of Virginia. This is not an obligation that can be taken lightly. The Attorney General’s decision today demonstrates a great deal of disregard for that obligation, as well as the legislative and democratic processes by which those laws are adopted.

Video: Herring press conference in Richmond

WAVY News’ Stephanie Harris reached out to Bostic and London’s counsel on the announcement and received the following statement from lead co-counsel Theodore B. Olson:

This is a great day for the Commonwealth of Virginia. Virginia’s marriage laws are needlessly mean-spirited and cause harsh and gratuitous pain and humiliation to gay and lesbian Virginians and their families.  Attorney General Herring’s actions today have brought Virginia that much closer to the quintessential American ideals of equality under the law and the freedom to pursue happiness.  We are grateful for his leadership and look forward to working with him to strike down Virginia’s odious marriage ban.

The Bostic case – first filed in July 2013 in Norfolk – argues that the Virginia Marriage Amendment is unconstitutional because it violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, violates Due Process, and singles out gay and lesbian couples for a disfavored legal status, thereby creating a category of “second-class citizens.

WAVY.com received the following statement from Adam Umhoefer, Executive Director of the American Foundation for Equal Rights, sponsor of the lawsuit:

The time has come for political leaders of all stripes in Virginia to follow Attorney General Herring’s lead in supporting the freedom to marry for all Virginians. The majority of Americans and the majority of Virginians agree that loving, committed couples like our plaintiffs Mary & Carol and Tim & Tony deserve the dignity and respect that comes with marriage.

Senator Tim Kaine released the following statement on Herring’s announcement:

I applaud Attorney General Herring for taking an important step to challenge Virginia’s constitutional ban on same-sex marriage today. As Governor, I opposed this discriminatory amendment and agree it’s time for Virginia to be on the right side of history with respect to marriage rights.

Bishop Paul S. Loverde of the Diocese of Arlington and Bishop Francis X. DiLorenzo of the Diocese of Richmond expressed extreme disappointment with the attorney general’s decision and issued the following statement:

Virginia voters put this provision in the Constitution, and no politician should be able to reverse the people’s decision. We call on the Attorney General to do the job he was elected to perform, which is to defend the state laws he agrees with, as well as those state laws with which he personally disagrees. We will continue to defend marriage between a man and a woman, an institution whose original design predates all governments and religions. The Government of the Commonwealth of Virginia should preserve and defend this original design because the constituent majority that supported the constitutional amendment understands the unique benefit that marriage between a man and a woman provides to individual families and society at large.

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