Virginia Wont Defend Ban on Gay Marriage Anymore

Virginia's newly elected attorney general said Thursday that his office would no longer defend the state's ban on same-sex marriage and instead will help opponents seeking to have the law struck down.

The decision by Democrat Mark Herring, elected in November by a razor-thin margin over Republican opponent Mark Obenshain, could provide support for a case filed last year by two same-sex couples looking to invalidate the state's ban.

The switch could have national implications as well. Virginia in recent years has emerged as a battleground state in presidential elections and is increasingly being regarded as a bellwether in the same-sex marriage debate. Seventeen states and the District of Columbia currently allow same-sex marriage.

Mr. Herring's decision is being welcomed by proponents of same-sex marriage, and comes on the heels of other wins for advocates of expanded rights for gays and lesbians in recent weeks.

"[T]he Attorney General has concluded that Virginia's laws denying the right to marry to same-sex couples violate the Fourteenth Amendment to the United States Constitution," wrote the state's solicitor general in a brief filed in Norfolk federal court on Thursday morning. "The Attorney General will not defend the constitutionality of those laws [and] will argue for their being declared unconstitutional."

A similar situation arose last year in Pennsylvania when Attorney General Kathleen Kane declined to defend the state against a lawsuit challenging Pennsylvania's ban on same-sex marriage. The defense was taken up by Gov. Tom Corbett's Office of the General Counsel, and the case is proceeding.

In Virginia, Mr. Herring's move comes a week before a key hearing in the case. But the move won't end the Norfolk suit as different defendants will continue to defend the state's law.

A different set of plaintiffs sued the state and others last year in federal court in Harrisonburg, in the western part of the state. Mr. Herring hasn't yet made a similar decision concerning that case.

"The [Norfolk] case will go on and ultimately it will be up to the judge whether the future of marriage in Virginia will be decided by the people or a federal court," said Jim Campbell, a lawyer with the Alliance Defending Freedom, which is representing one of the county clerks who is a defendant in the Norfolk case.

Last November, Virginia voters elected two Democratic supporters of same-sex marriage, Gov. Terry McAuliffe and Mr. Herring, over two Republicans who didn't.

Charles Lustig, a lawyer for the plaintiffs, said: "We're pleased that the attorney general has taken this important step….The commonwealth is no longer participating in officially sanctioned discrimination."

Last month, the New Mexico Supreme Court legalized same-sex marriage in the state. Also in December, a federal judge in Salt Lake City struck down as unconstitutional Utah's law defining marriage as between a man and a woman. Last week, a federal judge in Tulsa shot down a similar law in Oklahoma, saying it too violated the U.S. Constitution's equal-protection clause.

And earlier this week, a federal appeals court in San Francisco ruled that gays and lesbians can’t be excluded from jury service on grounds of their sexual orientation.

By  ASHBY JONES