Virginia’s Attorney General, Mark Herring, announced on Thursday that he, and his office, will not defend Virginia’s ban on same-sex marriages. Herring, a Democrat, made the announcement on NPR. ”As attorney general, I cannot and will not defend laws that violate Virginians’ rights,” Herring stated. ”The commonwealth will be siding with the plaintiffs in this case and with every other Virginia couple whose right to marry is being denied.”
Herring came to office in November 2013, winning an incredibly tight race — by 907 votes — over Republican state senator, Mark D. Obenshain. After he took office, Herring said he asked his staff to review Bostic v. Rainey.
The plaintiffs in the case are two couples, Tim Bostic and Tony London, and Carol Schall and Mary Townley. Bostic and London want to be married in the state of Virginia; Schall and Townley are seeking recognition of their California marriage. The American Foundation for Equal Rights has joined the case, as well as David Boies and Ted Olsen — both lawyers who have previously argued high-profile cases at the Supreme Court — who will represent the plaintiffs.
They affirm that the precedent set in Loving v. Virginia, which overturned Virginia’s ban on interracial marriage, is applicable to gay marriage today. By being treated differently, gay and lesbian couples in Virginia are being denied equal protection under the fourteenth amendment, the legal team states.
Herring alluded to this case on Thursday. “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,” Herring explained. “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.”
The couples involved in the case are an important aspect of the case for Herring. They have been “loving and committed couples” for a significant amount of time, and combined, the couples bring together issues the courts have been working through in recent years, Herring said.
Virginia’s ban on gay marriage has been in place since 2006. That year, voters passed the Marshall-Newman Amendment by a margin of 57 to 43 percent. Herring acknowledged that his past views differ from his present-day stance. In 2006, he favored the amendment, banning gay marriage.
But after he voted for the ban, he saw the negative impact take effect. He was a state senator at the time, and spoke with his constituents, as well as his children. When asked the role his children had, Herring said that, “They were instructive about the relationships that people have.” He went on to add, “they were helpful in getting me to see a different perspective. They pressed me for the position I had taken, and made me continue to question it.”
He now believes that amendment is not constitutional, and ultimately, the issue of gay marriage will need to be determined by the Supreme Court. Herring believes reversing the amendment “is the right thing to do.”
A Washington Post poll from May shows the evolution on the matter. It compared sentiment from 2011 among Virginia voters to where it stood in 2013. In May 2011, 46 percent of Virginians thought gay marriage should be legal; two years later, 56 percent favored legalizing gay marriage. Support grew by 10 percent, and those who thought gay marriage should be illegal fall by 10 percent, from 43 percent to 33 percent.