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Virginia Attorney General Mark Herring will challenge anti-gay marriage laws

Then-candidate Mark Herring campaigns for Attorney General of Virginia in September 2013
Then-candidate Mark Herring campaigns for Attorney General of Virginia in September 2013
(c) Rick Sincere 2013. All rights reserved.

Just days after Virginia was abuzz with news that former Governor Bob McDonnell and his wife had been indicted on corruption charges, the conversation was changed by an announcement on January 23 that state Attorney General Mark Herring will not defend the Commonwealth's prohibition on same-sex marriage in two federal law suits, and in fact will argue that the laws are unconstitutional.

Herring's decision was met with quite different reactions, ranging from praise to calls for his impeachment.

ACLU support

Claire Guthrie Gastañaga, executive director of the ACLU of Virginia, said in a statement that she and her organization were “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, a lawyer with Lambda Legal, a public interest law firm that works on gay-rights issues, described Herrings decision as “a critical and important development.”

The attorney general will intervene in two cases, one filed in Harrisonburg and one in Norfolk, in which gay couples are suing to have their relationships recognized as legal marriages.

Section 15-A of Article I of the Virginia Constitution, which was ratified in a referendum of voters in 2006, says that “only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions. This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.”

The amendment has been interpreted to mean that marriage, domestic partnerships, and private contracts analogous to marriage are prohibited to same-sex couples under Virginia law.

GOP complaint

In contrast to the ACLU, Pat Mullins, chairman of the Republican Party of Virginia, said in a press release distributed by email:

"It took Mark Herring less than a month to decide he doesn't want to be Attorney General. The first job of Virginia's Attorney General is to be the Commonwealth's law firm, and to defend the duly passed laws of Commonwealth."

Mullins concluded by saying that “Mark Herring's decision today not only abandons his first duty, it hobbles this vital legal process. It turns what could have been landmark jurisprudence into a political farce,” adding that, if Herring “doesn't want to defend this case, he should resign, and let the General Assembly appoint someone who will. Mark Herring owes the people of Virginia no less."

Similarly, state Senator Mark Obenshain, who lost a narrow race to Herring last November that required a recount, said in a news release:

"Fair minded people disagree on the issue of gay marriage, but this is, fundamentally, about the rule of law and allowing the system to work. Whether the Marriage Amendment will survive court scrutiny is clearly an unresolved question, but our system of law does not work when one side of the argument fails to show up. It is manifestly the job of the Attorney General to defend the law and let it rise or fall on it merits in court."

On the other side of the issue is Amanda Goad, staff attorney with the ACLU Lesbian Gay Bisexual and Transgender Project, who stated optimistically: "With the Attorney General on our side, we hope that we can soon count Virginia among the 17 other states where same-sex couples have the freedom to marry."

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