Virginia Attorney General Says Same Sex Marriage Ban Unconstitutional

Jim Burroway

January 23rd, 2014

The Washington Post reports that Virginia Attorney General Mark R. Herring will announce today that the state of Virginia will ask a federal court to strike down the state’s ban on marriage equality. Citing “an official close to the attorney general with knowledge about the decision,” the Post reports that Herring’s office will file a supporting brief in Bostic v Raine on behalf of a Norfolk couple who were denied a marriage license. Their case is being represented by Ted Olson and David Boies, the same legal team what successfully overturned California’s Prop 8.

The Post reports:

Herring will say that Virginia has been on the “wrong side” of landmark legal battles involving school desegregation, interracial marriage and single-sex education at the Virginia Military Institute, one official said. He will make the case that the commonwealth should be on the “right side of the law and history” in the battle over same-sex marriage.

He has not informed Republicans in Richmond about his plans; an uproar is likely. GOP lawmakers have worried that Herring would change the state’s position — such decisions are up to the attorney general — and have contemplated legislation that would allow them to defend the law in court.

The attorney general thinks that is unnecessary, the official said. The clerks of the circuit court in Norfolk and Prince William County are defendants in the suit, and both are represented by independent counsel.

One county clerk named in the suit has hired a private attorney, while another one will be defended by the Alliance Defending Freedom (formerly the Alliance Defense Fund). Oral arguments for the case are scheduled for January 30.


January 23rd, 2014

Because of the final Prop8 decision, such choices on the part of state AGs make me nervous. I suppose it is fortunate that Utah and OK are solidly defending their discriminatory laws, but I was really hoping having appeals on multiple circuits for the same case might force SCOTUS to finally act against all these laws.


January 23rd, 2014

Oh what a difference an election and a regime change makes!

Ben in Oakland

January 23rd, 2014

“ark R. Herring will announce today that the state of Virginia will ask a federal court to strike down a lawsuit challenging the state’s ban on marriage equality.”

It may be because I’ve been sick for a few weeks, and have no coffee, but is THAT what you meant to say?

Jim Burroway

January 23rd, 2014

I’ve corrected the post.


January 23rd, 2014

Is he asking that it be stricken down?
as local stations in NoVa are putting it, just saying he won’t defend it?

Anyways – ADF defending the law / clerks…

Haha. Loozerz.

They have an abysmal track record.
More hater $$ wasted that can’t be used elsewhere, trying to Putinize America.


January 23rd, 2014

Mr. Herring gave an interview on NPR this morning on this topic. Worth listening to.

Regan DuCasse

January 23rd, 2014

In the second Prop. 8 court case, ONE county clerk from Imperial Co was named as a plaintiff also.
Claiming that issuing a marriage license was against her religious beliefs.

However, she didn’t show up in court, nor had a proxy. The attorney, also from ADF, didn’t sign on to be the proxy and in any case, couldn’t prove she’d suffered anything undue to her religious beliefs because she’d subjected no one else to refusal who’d ALSO meet the definition of ‘sinners’.
It was the couple who’d come to obtain a license that suffered the undue burden.
They’d made an APPOINTMENT, taken the day off from their jobs (losing pay), driven for HOURS, only to be turned away with NO OTHER clerks available for the time set aside for the license.

“Going somewhere else” for goods, services and other needs, isn’t an option for many, nor should anyone be forced to ‘go somewhere else’ because of the arbitrary prejudices of others.

I doubt this single clerk will win her case any more than the others did.
She might go before the media, and her defenders try and make this about ‘religious persecution’, but at the end of the day, they have NO rights to ACT with prejudice, how much they want to THINK with it.


January 23rd, 2014

While interesting, Regan, I’m not sure the case you indicate makes sense. If Prop8 were in place, then the clerk was defending the law. If it was repealed, then the clerk was breaking the law.

In either case, the clerks in VA are defending their obedience to a constitutional amendment banning equality. I can see how the AG could see them as proxies for the defense of the amendment itself. Either way, personal religious beliefs don’t have to play a role in the clerks’ defense.

At the same time, I’m going to keep wishing Herring would enact an adequate enough defense to ensure that this law isn’t upheld on a technicality.


January 24th, 2014

Elections have consequences.

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