Regime Change in Virginia: New Attorney General Seeks to Overturn Gay Marriage Ban

mark herring


Elections have consequences. Virginia is a prime example, and nowhere are the consequences of the 2013 elections more evident than inside the Attorney General’s Office in Richmond. Less than two weeks into his term as the new Attorney General, Mark Herring (D) is reversing course from the legacy of his predecessor, Republican Ken Cuccinelli. Herring announced today that he believes Virginia’s ban on same-sex marriage is unconstitutional, and he has filed a legal brief asking a federal court in Norfolk to strike down Virginia’s gay marriage ban. In the brief Herring argues:

Virginia’s laws denying the right to marry to same-sex couples violate the Fourteenth Amendment to the United States Constitution. The Attorney General will not defend the constitutionality of those laws, will argue for their being declared unconstitutional,  and will work to ensure that both sides of the issue are responsibly and vigorously briefed and argued before the courts to facilitate a decision on the merits, consistent with the rule of law.

Herring’s position represents a radical departure from that held by Ken Cuccinelli, the man he replaced. Cuccinnelli was a staunch opponent of marriage equality and once filed a brief equating same-sex marriage with polygamy.

Virginia voters approved a constitutional amendment banning same-sex marriage in 2006, but Herring, who himself voted for a ban eight years ago, now believes that state amendment violates the Fourteenth Amendment to the U.S. Constitution.  Herring argues that he does not want Virginia to be on the wrong side of history this time stating:

There have been times in some key landmark cases where Virginia was on the wrong side, was on the wrong side of history and on the wrong side of the law,” he said. “And as attorney general, I’m going to make sure that the [people] presenting the state’s legal position on behalf of the people of Virginia are on the right side of history and on the right side of the law.

Herring further added that he “cannot and will not defend a law that violates Virginians’ fundamental constitutional rights.” Brian Coy, a spokesperson for Governor Terry McAuliffe confirms that the Governor supports Herring’s decision. The reversal of the VA Attorney General’s office from actively fighting marriage equality to actively promoting it, underscores that on social issues, the two parties are not at all alike. Elections have consequences, and regime change in Richmond means that gay and lesbian couples may soon have the right to marry in one of the states of the Old Confederacy.

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