Virginia Attorney General Will No Longer Defend Gay Marriage Ban In Federal Court

Mark Herring, Attorney General for the state of Virginia, will no longer defend Virginia’s ban on gay marriage in federal lawsuits, his office reports.

“After a thorough legal review of the matter, Attorney General Herring has concluded that Virginia’s current ban is in violation of the U.S. constitution and he will not defend it,” spokesman Michael Kelly said in an email to the Associated Press, via the New York Times.

Kelly’s email states that Herring, a Democrat who campaigned on a platform that included marriage equality, was due to file a brief Thursday with the federal court in Norfolk, where one of the current lawsuits is being heard, to indicate the state’s reversed position.

While marriage has long been a statutory issue, recent federal court rulings have overturned gay marriage bans in states like Utah and Oklahoma. Hawaii, the last state to join the Union in 1959, became the first state to give its legislature the power to ban gay marriage in 1998.

Virginia’s statutory ban on gay marriage came in 2006 in the form of SB 526, the Marshall-Newman Amendment, which passed by referendum with 57 percent approval, stating “marriage may exist only between a man and woman.” Herring’s refusal to defend the gay marriage ban is indicative of the rapidly-changing social climate surrounding the issue, illustrated in Virginia by recent polls from the Washington Post.


One Viriginia-based values group, The Family Foundation, issued a statement with icy rhetoric in response to the news.

The decision by the Attorney General is not surprising, but it is disappointing and frightening. It’s disappointing that he wouldn’t be clear about his intentions on this issue while campaigning for the office. More importantly, it’s frightening that politicians like the Attorney General feel that they can pick and choose which aspects of the Constitution they deem worth to defend and apply. Whether one agrees with the marriage amendment or not, the idea that over a million Virginia citizens can be left defenseless by the Attorney General after legally voting for an amendment that he himself supported is chilling

The Times reports Herring isn’t the first state attorney general to drop the defense of a gay marriage ban; Kathleen Kane of Pennsylvania did the same last year, likewise calling the measure unconstitutional. Pennsylvania hired an outside law firm to handle the lawsuits against the gay marriage ban.

What do you think of Herring’s decision to reverse Virginia’s position on the gay marriage ban?