Virginia’s attorney general said he will seek to overturn a state ban on gay marriage, comparing it to its prohibition on interracial unions that the U.S. Sureme Court rejected 47 years ago.
Virginia’s Mark Herring, who was sworn into office 12 days ago, is the fourth attorney general in the U.S. to refuse to defend such a law, and the first in the South to do so.
“Virginia has argued on the wrong side of some of our nation’s landmark cases -- in school desegregation in 1954, on interracial marriage” in 1967, Herring said today in statement. “It’s time for the commonwealth to be on the right side of history and the right side of the law.”
Gay marriage is legal in 17 U.S. states and the District of Columbia. Federal appeals courts are grappling with the issue after the U.S. Supreme Court in June left standing an order ending California’s ban on same-sex marriage without saying whether similar laws should also be struck down.
A lawyer for Herring filed papers in federal court in Norfolk changing the state’s position and ending Herring’s role as lead defender of Virginia’s constitutional ban and statutory prohibition on same-sex marriage. Virginia’s solicitor general, Stuart Raphael, will represent the state in the suit, according to court papers.
The ban will be defended by a lawyer for Norfolk Circuit Court Clerk George Schaefer, whose office denied a marriage license to two of the plaintiffs in the case.
The Richmond, Virginia-based Family Foundation criticized Herring, saying he should have made his intentions clear while campaigning for office.
“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,” the group, which opposes gay marriage, said in a statement today.
In a court filing, Herring compared Virginia’s ban on same-sex marriages to prohibitions on interracial unions, which the U.S. Supreme Court struck down in the 1967 case Loving v. Virginia.
“Loving rejected the same arguments offered in support of the marriage ban here,” Herring said.
Timothy Bostic and Tony London sued Virginia in July. When they tried to get a marriage license in Norfolk, where Bostic is a professor at Old Dominion University, the clerk of the local court refused, citing state law and a state constitutional provision that have been in effect since at least 1975.
The men, who have been together since 1989, said the state ban violates the U.S. Constitution’s guarantee of equal protection by denying them rights associated with marriage, including survivor’s benefits, Navy disability benefits and Medicaid benefits.
Virginia also wrongly refuses to recognize same-sex marriages performed legally in other states, they said.
Herring’s decision follows similar steps by attorneys general Kamala Harris of California, Lisa Madigan of Illinois and Kathleen Kane of Pennsylvania, all Democrats. Gay marriage is legal in California and will become so in Illinois on June 1. It is the subject of a Pennsylvania court fight.
In June, the U.S. Supreme Court overturned part of the federal Defense of Marriage Act. In December, New Mexico, the only state without a law specifically allowing or prohibiting gay marriage, was barred by its highest court from denying same-sex couples the right to marry.
This week, a new constitutional challenge was raised to a gay-marriage ban in Florida.
“We’re pleased to welcome the attorney general and the commonwealth to the right side of history,” Claire Guthrie Gastanaga, executive director of the American Civil Liberties Union of Virginia, said in an e-mailed statement.
Separately, a federal appeals court in San Francisco this week barred litigants from excluding gay men and lesbians from jury panels because of their sexual orientation. It was the first time a U.S. appeals court ruled this way.
“Permitting a strike based on sexual orientation could send the false message that gays and lesbians could not be trusted to reason fairly on issues of great import to the community or the nation,” according to the three-judge panel’s ruling.
The appeals court overturned a $3.5 million verdict in a 2011 trial between drug companies GlaxoSmithKline Plc and Abbott Laboratories and ordered a new trial. It may be the first decision to extend the Supreme Court’s June ruling to a context other than marriage, University of Cincinnati law professor A. Christopher Bryant said.
“We’re on the cusp of a revolution,” he said in a telephone interview.
The Virginia case is Bostic v. McDonnell, 13-cv-00395, U.S. District Court, Eastern District of Virginia (Norfolk).