Virginia’s top law enforcement official on Thursday said he would not defend the state’s voter-approved constitutional amendment banning same-sex marriage and that he will actively work to overturn the law.
Virginia Attorney General Mark R. Herring, saying it’s “time for the commonwealth to be on the right side of history and the right side of the law,” also announced that he would join a federal lawsuit on behalf of two gay couples who are challenging the ban.
Advocates of same-sex marriage, including Gov. Terry McAuliffe, cheered the move, while opponents decried it as a gross misuse of the power of Mr. Herring’s office.
Virginia House Speaker William J. Howell, Stafford Republican, said in a statement that he was “very concerned” about the announcement and “the dangerous precedent it sets with regard to the rule of law.”
“The Attorney General has a constitutional and statutory obligation to enforce and defend the duly adopted laws and Constitution of Virginia,” Mr. Howell said. “This is not an obligation that can be taken lightly. The Attorney General’s decision today demonstrates a great deal of disregard for that obligation, as well as the legislative and democratic processes by which those laws are adopted.”
The amendment passed a public vote in 2006, 57 percent to 43 percent. But amid a growing number of states legalizing the unions, an NBC/Marist poll last year showed 54 percent of registered voters in the state now support same-sex marriage, compared with 38 percent who oppose it and 8 percent who are uncertain.
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Mr. Herring, though he supports same-sex marriage, said the decision was based on his interpretation of the law and his duty.
“There are those who will say that the attorney general is required to defend every challenge to a state law, even a law that is unconstitutional,” said Mr. Herring. “They could not be more wrong.”
The Democrat said at a Thursday news conference in Richmond that 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. And it’s that simple,” he said.
He cited the precedents of former Attorney General Kenneth T. Cuccinelli II, a Republican who refused to defend a state education law last year, and former Attorney General Jerry Kilgore, a Republican who signed on with more than 40 attorneys general in 2003 to argue that an attorney general “is properly carrying out his constitutional duties when he seeks to invalidate a state law that he believes, in his independent judgment, to be unconstitutional.”
Thursday’s announcement does not legalize same-sex marriage in Virginia, and the attorney general noted that the ban will be in effect as the legal case winds its way through the judicial system. A hearing is scheduled for Jan. 30.
If the challenge is successful, Virginia could join Utah and Oklahoma in having voter-approved prohibitions on same-sex marriage lifted when federal courts intervened.
Last year, the U.S. Supreme Court struck down the Defense of Marriage Act, which bars the federal government from recognizing same-sex marriage in states, as unconstitutional. Mr. Herring said the Constitution is “the law of the land” and a state law and state constitution cannot trump it.
“I swore a duty to uphold both, and the Supreme Court is clear — the United States Constitution is the law of the land, [the] supreme law of the land,” he said.
Seventeen states and the District have legalized same-sex marriage, while 29 states have constitutional amendments banning it.
After a historic Democratic sweep of the top three statewide offices in November’s elections, emboldened activists are optimistic that Virginia could be the first Southern state in which same-sex marriage would be recognized.
A solid Republican majority in the House of Delegates has stood as a bulwark against reconsideration of the constitutional amendment, which to be reversed would have to be approved by the General Assembly in two sessions separated by a general election and then approved by voters. The soonest that vote could occur would be 2016.
Mr. Herring voted against same-sex marriage in 2006 as part of the process to pass the amendment when he was a state senator and said Thursday he regrets that vote.
“Even at that time, I spoke about the need to fight other forms of discrimination against Virginians based on their sexual orientation,” he said. “But I was wrong to stop short of marriage equality.”
The federal case at hand involves four plaintiffs. Timothy Bostic and Tony London applied for a marriage license from the Norfolk circuit court clerk on July 1, but were denied. Carol Schall and Mary Townley, who have lived in Virginia since 1982, were married in California in 2008 and want their marriage to be recognized in the commonwealth.
Another challenge to the ban has been filed in federal court in Harrisonburg.
Mr. Herring said the case will proceed and the law will continue to be defended by other attorneys.
“Until the courts can rule on the matter, the state registrar Janet Rainey will continue to enforce the current ban, but neither she nor I will defend its constitutionality,” he said.
• David Sherfinski can be reached at dsherfinski@washingtontimes.com.
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