By Rebecca Glenberg, ACLU of Virginia Legal Director
Virginia Attorney General Mark Herring announced today that he considers Virginia’s constitutional amendment and laws denying marriage equality to same-sex couples to be unconstitutional, and that he will not defend those laws in Court. This is thrilling news from Virginia’s top lawyer, reflecting the profound change in attitudes about marriage for same-sex couples that has taken place in recent years in Virginia and across the country.
The Attorney General represents Registrar of Vital Records Janet Rainey in Harris v. McDonnell, our lawsuit challenging Virginia’s discriminatory laws, and in Bostic v. Rainey, a similar lawsuit filed in Norfolk. He filed papers today in Bostic explaining the state’s change in position, and we expect him to file similar papers in our case.
In the legal papers, Herring noted that, like all public officials in Virginia, he has taken an oath of office to uphold the constitution and laws of the United States as well as the constitution and laws of Virginia. Federal law takes precedence over state law whenever there is a conflict. Herring explained that, after a careful examination of the legal arguments, he determined that Virginia’s denial of marriage equality to same-sex couples is unconstitutional under the Federal Constitution, and his duty to uphold the United States Constitution does not allow him to make arguments attempting to justify the state’s discriminatory laws.
For this reason, Herring has said that he will must refuse to defend Virginia’s ban on marriage for same-sex couples and its ban on recognition of out-of-state marriages, and he will join the plaintiffs in the lawsuits in urging the courts to strike down those bans. The Bostic judge will be hearing arguments in the case on January 30, and we look forward to hearing Virginia officials argue in court for the first time that the right to marry should be extended to all Virginians.
While we cannot predict how the Attorney General’s switch will affect the ultimate outcome in court, we are pleased to welcome him to the right side of history. We will keep you apprised of developments as events unfold.