Anti-gay group wants to impeach Virginia attorney general

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Virginia Attorney General Mark Herring.

The anti-gay National Organization for Marriage wants to impeach Virginia's attorney general, who announced today that he would not defend the state's amendment against gay marriage because it is unconstitutional.

Virginia Attorney General Mark Herring announced this morning that instead of defending the amendment, he will side with the plaintiffs seeking to overturn the measure in court. In a statement released early on Jan. 23, a spokesman for Herring, Michael Kelly, wrote, "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."

Herring, a Democrat, planned to file a brief this morning with the federal court in Norfolk, Va., where one of two lawsuits is being heard next week.

That lawsuit is Bostic v. Rainey, and it was filed with the support of American Foundation for Equal Rights, the same team behind the successful legal campaign to overturn California's Proposition 8. The couples in the case are represented by Ted Olson and David Boies, the attorneys who fought the Proposition 8 case all the way to the U.S. Supreme Court.

The second case, Harris v. McDonnell, was filed in the Western District of Virginia on behalf of same-sex couples by Lambda Legal and the American Civil Liberties Union.

laire Guthrie Gastañaga, executive director of the ACLU of Virginia, said this morning, "We’re pleased to welcome the attorney general and the commonwealth to the right side of history, and we want to be sure that whatever happens next will result in a quick, clear, and final decision affirming the freedom to marry for our clients and for all Virginians."

Virginia voters approved a constitutional amendment barring marriage and other forms of relationship recognition for same-sex couples in 2006. But polls now show a majority of voters in the state support legalizing same-sex marriage.

Still, NOM president Brian Brown in a statement today said Herring should be impeached for malfeasance and neglect of duty.

“The attorney general swore an oath that he would ‘support…the Constitution of the Commonwealth of Virginia’ and faithfully discharge his duties, which include defending duly enacted laws like the state’s marriage amendment," said Brown. "Yet now Attorney General Herring is participating in a lawsuit against the very people he is sworn to represent, the citizens of Virginia who preserved marriage in their constitution. This malfeasance and neglect of duty is not only a disgrace, it’s an impeachable offense under the constitution."

Herring didn't answer Brown directly, but he did state today that his oath keeps him from defending an unconstitutional provision.