Virginia is for lovers: Virginia AG says state’s ban on same-sex marriage is unconstitutional, will ask a federal court to strike it down

Posted by AzBlueMeanie:

EqualThe other day I posted that "Media attention is about to turn to the state of Virginia, where a high profile case led by the Prop. 8 "Dream Team" of David Boise and Ted Olson is scheduled for a hearing on January 30."

That day is today.

The Washington Post reports that Virginia's newly elected Attorney General Mark Herring is taking a page out of California's Prop. 8 litigation playbook, and announced today that he believes the state’s ban on same-sex marriage is unconstitutional. He said Virginia will join two same-sex couples in asking a federal court to strike it down. Virginia’s Herring files brief opposing same-sex marriage ban:

The action, which Herring (D) made with the support of Gov. Terry McAuliffe (D), marks a stunning reversal in the state’s legal position on same-sex marriage and is a result of November elections in which Democrats swept the state’s top offices.

Democrats cheered the move as a victory for civil rights while Republicans blasted it as dereliction of the attorney general’s duty to defend the state constitution.

Herring said his chief duty is to defend the U.S. Constitution.

“The Supreme Court is clear: the United States Constitution is the law of the land, the supreme law of the land,” Herring said at a press conference. “I believe the freedom to marry is a fundamental right and I intend to insure that Virginia is on the right side of history and the right side of the law.”

State Sen. Adam P. Ebbin(D-Alexandria), the first openly gay member of the General Assembly, was among those who applauded Herring’s move.

“Today is a proud day to be a Virginian,” he said. “We are the birthplace of civil liberties, and it’s exciting to see Virginia getting this right.”

But some Republicans sa id Herring had made an outrageous attempt to thwart the will of the people. After winning an election largely based on criticizing conservative Republican Ken Cuccinelli II’s activist tenure as attorney general, critics said, Herring seems to be taking the law into his own hands for liberal ends.

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Some GOP legislators said they would look for a way to thwart Herring’s action. Anticipating Herring’s move, the General Assembly is already considering legislation to fund a legal defense for any laws that the attorney general chooses not to defend.

* * *

Herring had voted against same-sex marriage eight years ago, when he was a state senator. But he has said that his views have changed since then, and he filed a brief Thursday stating Virginia’s reversal in a lawsuit in Norfolk that challenges the state’s ban.

“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 brief states.

At a news conference in Richmond, Herring said that the state has been on the wrong side of landmark legal battles involving school desegregation, interracial marriage and single-sex education. He made the case that Virginia should be on the right side of the law and history in the battle over same-sex marriage.

“As attorney general, I cannot and will not defend a law that violates Virginians’ fundamental constitutional rights,” he said.

* * *

Herring used much of the brief to defend his position.

“When the Attorney General, exercising his independent constitutional judgment, concludes that a provision of the Virginia Constitution (or Act of the General Assembly) violates the federal Constitution, he is not duty bound to defend it,” the brief states. “Although the practice is rare for Virginia attorneys general, it is not unprecedented.”

Herring said the Republican proposal to allow them to defend the law in court is unnecessary. Norfolk clerk George E. Schaefer is represented by a private lawyer paid by the state’s risk management department. Prince William clerk Michele B. McQuigg, who asked to intervene in the case, is represented by the conservative legal group Alliance Defending Freedom.

Janet Rainey, the state registrar of vital records, is also a defendant. Although Herring urged the court to strike down the ban, she will continue to enforce it until the courts act.

Democrats are sensitive to charges that it is Herring’s duty to defend Virginia’s law regardless of whether he agrees with it. They point out that [former Republican AG Ken] Cuccinelli refused to defend one of then-governor Robert F. McDonnell’s education reforms in court, saying he believed that the legislation (for state takeovers of failing schools) was unconstitutional.

But generally, supporters were quick to cheer Herring’s move. U.S. Sen. Timothy M. Kaine (D-Va.) tweeted this message to his followers: “Thank you @MarkHerringVA for fighting VA’s same-sex marriage ban! I agree — time to bring VA on to the right side of history.”

The move in Virginia is part of a quickly changing legal landscape reshaped by the Supreme Court’s rulings in two cases on same-sex marriage in June.

* * *

The Obama administration took a position similar to Herring’s when it announced it would not defend DOMA, which Congress passed in 1996 and then-President Bill Clinton signed into law. Attorney General Eric H. Holder Jr. joined the legal challenge against the key part of the law, and House Republicans hired a lawyer in an unsuccessful bid to save it.

Similarly, Democratic attorneys general in other states have said they think their bans are unconstitutional. Democrats in California refused to defend Proposition 8. And last summer, Pennsylvania Attorney General Kathleen Kane bowed out of challenges to her state’s law.

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U.S. District Judge Arenda L. Wright Allen has scheduled oral arguments for Jan. 30 in the Norfolk case. [Bostic v. Rainey, U.S. District Court for the Eastern District of Virginia – Norfolk Division (Civil Action No. 2:13-cv-395).] It received a jolt of attention last fall when lawyers Theodore B. Olson and David Boies, who brought the federal challenge of Proposition 8, announced that they were joining the plaintiffs’ side.

In addition, the American Civil Liberties Union is challenging the Virginia ban in a federal suit in Harrisonburg. That case is not as far along.

Virginia has been a particularly appealing place for a challenge by supporters of gay rights because of the Supreme Court’s 1967 decision in Loving v. Virginia, which struck down laws against interracial marriage. Those who support same-sex unions often draw a parallel.

Herring made the same point. “Loving teaches that the Fourteenth Amendment protects the fundamental right to marry even if the way in which it is practiced would have surprised the framers or made them uncomfortable,” he wrote.

Elections have consequences. Remember this when the GOP puts up culture warriors for Cathi Herrod and her Christian Taliban at the Center for Arizona Policy (CAP) for AG, against a highly qualified  prosecutor, Democrat Felecia Rotellini, this fall.

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