Virginia's attorney general to oppose anti-gay marriage ban in court

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Virginia Attorney General Mark Herring.

Virginia's new attorney general says he will not defend the state's ban on gay marriage, which he says is unconstitutional.

Instead of acting as defendant, Virginia Attorney General Mark Herring says 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 the lawsuits is being heard.

“Attorney General Herring joins the growing legal and public consensus that barriers to marriage for lesbian and gay couples do not protect anyone and only harm Virginia families," said Human Rights Campaign president Chad Griffin.  “This courageous stand on behalf of the Commonwealth plants Virginia firmly on the right side of history."

There are two lawsuits in the state that argue the state's ban violates the Constitution's equal protection and due process clauses.

The election of Herring, who recently took his oath of office, and also that of Democrat Terry McAuliffe as governor, took Virginia from a right-wing track to a left-veering course. Former Attorney General Ken Cuccinelli is anti-choice and anti-gay. But Herring campaigned for his office as a supporter of marriage equality.

One of the lawsuits seeking the freedom to marry in Virginia, Bostic v. Rainey, 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."

Greg Nevins, an attorney in Lambda Legal’s Southern Regional Office based in Atlanta, added, "It is a critical and important development when the attorney general — the keeper of the federal and state constitution in the commonwealth — joins us in arguing that barring same-sex couples from marriage is clearly unconstitutional. We will continue to work to remove all remaining impediments so that Virginia can join the growing number of states where same-sex couples in loving, committed relationships are treated equally and can enjoy fully the benefits and responsibilities marriage provides."

Virginia voters approved a constitutional amendment barring marriage and other forms of relationship recognition for same-sex couples in 2006.