Virginia's New Attorney General Will Not Defend Gay-Marriage Ban

Jan 23, 2014
Originally published on January 23, 2014 2:08 pm

Virginia's new attorney general has decided to switch sides in an important case that is challenging the state's constitutional ban on gay marriage.

In an interview with Morning Edition's Steve Inskeep, Democrat Mark Herring said his office will no longer defend the state's ban on same-sex marriages.

"As attorney general, I cannot and will not defend laws that violate Virginians' rights," Herring said. "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 was sworn in just days ago after a razor-thin win in November, an election that marked big political change in the state and also ushered in Democrat Terry McAuliffe to the governor's mansion. Herring is taking over for Ken Cuccinelli, a Republican who ran and lost a bid for governor on a Tea Party platform and was a staunch defender of the gay-marriage ban.

Herring said as he came into office, he asked his staff to review Bostic v. Rainey and, after careful consideration, he came to the conclusion that the ban violates the Equal Protection Clause of the 14th Amendment of the Constitution.

Bostic v. Rainey is one of those cases that are being closely watched. The lawyers challenging the Virginia ban, for example, are David Boies and Ted Olson, who represented the couples who took California's ban on gay marriage all the way to the U.S. Supreme Court.

While there are several cases moving through the system that could end up in the high court — one from Utah and one from Oklahoma, for example — this is one that marriage equality advocates would like to see reach the top.

Back in September, when Boies and Olson announced they were joining the case, they said they saw the California Proposition 8 case as the beginning "of our fight for marriage equality."

"What we're hoping, with the case in Virginia, [is] it's the beginning of the end," Boies said.

Herring's solicitor general will tell a federal judge in Norfolk next week that Virginia is joining the plaintiffs in the case, that the state agrees a ban on gay marriage denies some couples in the state what the Supreme Court has called a fundamental right.

Herring said he's doing it for Virginians. That's when Steve reminded him that the amendment to Virginia's Constitution defining marriage as only between a man and woman was approved by 57 percent of voters in 2006.

Herring said that his job is to defend laws that are constitutional. This one, he said, isn't. Also, Herring added, he wants his state to be on the right side of history.

"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 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 also admitted that this issue has been a personal journey for him. In 2006, when he was a member of the state Senate, he voted against marriage equality.

At the time, he said, he was speaking out against discrimination.

"I was wrong for not applying it to marriage," Herring said. "I saw very soon after that how that hurt a lot of people and it was very painful for a lot of people."

After talking to constituents and his family, including his children, he came to "see the issue differently."

Herring's decision doesn't mean an end for Bostic v. Rainey. There are other defendants on the case who will argue in favor of the gay-marriage ban.

Much more of Steve's interview with Herring is on Thursday's Morning Edition. Click here for an NPR station near you.

Update at 1:20 p.m. ET. Herring's Decision Is "Disappointing And Really Frightening":

Later on Thursday, Victoria Cobb of The Family Foundation told Morning Edition that "it's just disappointing and really frightening" that Herring would come out against an amendment to the state constitution that was put there after a vote by the state's citizens. She also said Herring should have been "honest and straightforward" about his intentions during last year's campaign.

Cobb's foundation says its mission "is to strengthen families in Virginia by applying founding principles and faith to policy and culture."

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It's MORNING EDITION, from NPR News. I'm Steve Inskeep.


And I'm Renee Montagne. Here's a look at the next step in the fight over same-sex marriage. That fight is accelerating in states where it's still banned.

INSKEEP: Last year, the Supreme Court struck down a federal marriage law and California's gay marriage ban. The court did not rule on bans in dozens of other states, leaving gay marriage advocates to press additional lawsuits.

MONTAGNE: Today, they have a new ally. Virginia Attorney General Mark Herring tells NPR his office is switching sides. He will support the lawsuit to overturn his own state's gay marriage ban.

MARK HERRING: 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. And as attorney general, I'm going to make sure that the person 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 the law.

INSKEEP: Virginia's history includes a famous Supreme Court case known as Loving vs. Virginia. The high court struck down a ban on interracial marriage. Now that the issue is same-sex marriage, advocates have lined up high-profile lawyers for two Virginia couples who sued for the right to marry.

The previous attorney general - who's Republican - defended Virginia's law. Then Democrat Mark Herring won a very narrow election last year, by 907 votes. He tells us that today, he's moving from the defendant's side of the argument to that of the plaintiff's.

HERRING: After a very careful and thorough analysis, I believe Virginia's ban on marriage between same-sex couples violates the 14th Amendment of the United States Constitution. And as attorney general, I cannot and will not defend laws that violate Virginians' rights. And so instead, the Commonwealth will be siding with the plaintiffs who have brought this case, and be siding with every other Virginia couple whose right to marry is being denied.

INSKEEP: I want to make sure that I'm clear on what's happening here, because it is a little unusual. You are the attorney general of the state of Virginia. Ordinarily, you or the lawyers working for you would defend state laws when they're challenged in court. But in this case, you're going over to the other side, and you will argue to change state law. You will argue to overturn state law, in fact.

HERRING: That's right. And an attorney general has a duty to support those laws that are constitutional and validly adopted and - whether I agree with the policies behind them or not. And an attorney general also has just as strong a duty to not defend laws that he has concluded - after a careful and thorough analysis - that are unconstitutional. And it's that simple. Just less than two weeks ago, I took an oath to uphold both the Virginia and United States Constitutions. Beyond my duty to uphold the Constitution, and to represent state agencies and agency heads, I also answer first to another client. It's the people of Virginia. And that's what I have pledged over and over to do, is to put the law and put Virginians first.

INSKEEP: Although you mentioned the people of Virginia, and that adds some more complexity here. Because if I'm not mistaken, this is part of Virginia's constitution because the people of Virginia explicitly voted on it not so many years ago, and in fact, you were in favor of having them vote on it. Are you at risk of here of going against a substantial portion of the people of Virginia - possibly even a majority, depending on who you'd ask.

HERRING: Well, that's one aspect that I thought very carefully about, but it's about what the law requires here. And, you know, we have concluded - I have concluded that the law is unconstitutional. And I think the Supreme Court - which ultimately will have to decide this issue - if confronted with the facts similar to what we have here, would find the law unconstitutional.

INSKEEP: Do you see this as a case that could go to the Supreme Court and lead to the overturning - if your side wins - of all state bans on gay marriage?

HERRING: Well, ultimately, the Supreme Court is going to have to be the one to decide this issue. Whether this is the case that's going to do it or not, I don't know. My focus is on my responsibilities as attorney general in Virginia, and making sure that the rights of Virginians are protected and vindicated.

INSKEEP: I understand why you need to say that, but I'm just wondering what you would think if your action ends up contributing to the nationwide overturning of same-sex marriage bans.

HERRING: Well, I think, for me, what's important is doing what's right. And we'll have to wait and see how the courts play out. There's certainly facets to the case which I think are of interest. Certainly, the stories of the couples involved in the case bring the issues that I think will need to be decided, front and center. I think Virginia's history is one that is important in advancing democracy and freedom, and being the home of one of our first freedoms - religious freedom; but that on some key landmark decisions - including one, the Loving case, which enunciated the right to marry. And it's instructive that in that case, the court didn't say that there was a right to interracial marriage. It said that everyone - all individuals - have the right to marry. And all individuals means all individuals.

INSKEEP: When you say the biographies of the people involved, you're saying that the plaintiffs here, by all appearances, seem to be upstanding citizens: an English professor, a real estate person, someone who works with people with autism. We're talking about people that could stand before the country and effectively, become symbols of this effort.

HERRING: I think the plaintiffs in this case have been loving and committed couples for a long time - I think 25 years. One is a Virginia couple. The other, Carol Schall and Mary Townley, live in the Richmond area. Their relationship of three decades was formalized in 2008 by a marriage in the state of California, and together they have a 15-year-old daughter. So, I think in that sense, they bring together a lot of the legal issues that, you know, courts are grappling with right now.

INSKEEP: How much of a personal journey has this been for you, attorney general?

HERRING: Well, you mentioned earlier - I had voted against marriage equality eight years ago, back in 2006, even though at the time, I was speaking out against discrimination and ways to end discrimination. And I was wrong for not applying it to marriage. I saw very soon after that how that hurt a lot of people, and it was very painful for a lot of people. After that, I talked to a lot of people - constituents I represented as a state senator, co-workers, my family, including my children - and I've come to see the issue very differently now.

INSKEEP: You said your children. What did your children tell you?

HERRING: Well, I think they were instructive about the relationships that people have. And they were helpful in getting me to see a different perspective.

INSKEEP: How did they phrase that? Come on, Dad - what did they say?

HERRING: You know, they pressed me for the position I had taken and made me continue to question it. And I just came to the conclusion that it was the right thing to do.

HERRING: Mark Herring is the new attorney general of Virginia. He's announcing today that his office is switching sides in a challenge to Virginia's ban on gay marriage. Transcript provided by NPR, Copyright NPR.