Mark Herring
Virginia's Attorney General Joins Fight Against Marriage Ban

By Sunnivie Brydum

Originally published on Advocate.com January 23 2014 12:16 PM ET

Virginia attorney general Mark Herring announced Thursday that he will not defend the state's constitutional ban on same-sex marriage in federal court. And the decision "brought Virginia that much closer" to marriage equality, lawyers say.

Herring, a Democrat who took office January 7, not only said the state's constitutional prohibition on same-sex marriages or the recognition of such legal unions performed elsewhere is unconstitutional, but also announced that his office will join the plaintiffs who've filed the federal suit to abolish the law. 

"After a very careful and thorough analysis, I believe Virginia’s ban on marriage between same-sex couples violates the Fourteenth Amendment of the United States Constitution," Herring told NPR Thursday. "And as attorney general, I cannot and will not defend laws that violate Virginians’ rights. And so instead, the commonwealth will be siding with the plaintiffs who have brought this case and be siding with every other Virginia couple whose right to marry has been denied."

When Herring was a state senator in 2006, he voted in favor of the constitutional amendment forbidding same-sex marriage. Then, 57 percent of Virginians approved the amendment.

While on the the campaign trail last year, Herring made clear that his position had changed, notes ThinkProgress. Herring's predecessor, former attorney general Ken Cuccinelli, was a far-right Republican who campaigned for governor on a promise to defend the state's ban and appealed to keep intact Virginia's unconstitutional ban on sodomy all the way to the U.S. Supreme Court, which turned him away.

The American Foundation for Equal Rights, the lead sponsor of the federal challenge to Virginia's marriage ban, known as Bostic v. Rainey, applauded Herring's decision. AFER was responsible for bringing the case that ultimately restored marriage equality in California, Hollingsworth v. Perry, to the Supreme Court, and has once again enlisted the legendary legal team of David Boies and Ted Olson, who famously opposed each other in the 2000 case Bush v. Gore. 

"This is a great day for the Commonwealth of Virginia,” said Olson in a statement today. “Virginia’s marriage laws are needlessly mean-spirited and cause harsh and gratuitous pain and humiliation to gay and lesbian Virginians and their families.  Attorney General Herring’s actions today have brought Virginia that much closer to the quintessential American ideals of equality under the law and the freedom to pursue happiness.  We are grateful for his leadership and look forward to working with him to strike down Virginia’s odious marriage ban."

Although the state's attorney general won't defend the ban — and it's unlikely that newly sworn-in Democratic governor Terry McAuliffe would defend the law, either — additional defendants are expected to step in and fight to keep discrimination on the books, Think Progress notes.