(Updated) Attorney General Mark Herring “Will Not Defend VA’s Ban on Same-Sex Marriage”
Virginia Attorney General Mark Herring said his office will not defend the state’s constitutional ban on same-sex marriage in a press conference today.
“I believe the freedom to marry is a fundamental right, and I intend to ensure Virginia is on the right side of history, and on the right side of the law,” said Herring.
Shortly before the press conference, Herring’s office filed a brief which reversed the state’s stance on the first case challenging the ban, Bostic V. Rainey.
“The AG’s office has concluded that VA’s laws denying the right to marry to same-sex couples violate the fourteenth amendment of the US Constitution,” reads the preliminary statement of the brief. “The AG will not defend VA’s ban on same-sex marriage.”
Herring went on to clarify his refusal to defend a state law, something legislators like Delegate Bob Marshall, who authored the state’s same-sex marriage ban, say is a failure of the AG to do his Job.
“I am doing the duty I was sworn to do. An Attorney General has a duty to support those laws that are constitutional and validly adopted, and an Attorney General has just as strong an obligation and duty not to defend laws that he has concluded are unconstitutional after a careful and thorough review,” said Herring. “And it’s that simple.”
There is precedent for a VA AG refusing to defend a state law. Former AG Ken Cuccinelli refused to defend the Opportunity Educational Institution last year, and in 2003, then AG Jerry Kilgore joined 43 other state AGs saying an attorney general is properly carrying out his constitutional duties when he seeks to invalidate a State law he believes to be unconstitutional.
Virginia’s ban on same-sex marriage will not be immediately affected by Herring’s stance today. The AG clarified the ban is still in place and at least one of the cases challenging the ban, Bostic V. Rainey, will continue with its court date next Friday January 30th, with representatives from Norfolk and Prince William County serving as defense.
When Herring was in his Senate seat in 2006, he voted to enact the state’s ban on same-sex marriage. But he said today he has since changed his position. “ My feelings about the policy, as well as the law, have changed since then,” said Herring. “Recent cases dealing with discrimination on the basis of sexual orientation… [along with a] long line of cases supporting the fundamental right to marriage” have impacted his current stance on the issue.
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