Virginia Won't Defend Its Same-Sex Marriage Ban

2:33 PM, Jan 23, 2014   |    comments
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Richard Wolf, USA Today

Virginia's attorney general won't defend the state's constitutionalamendment banning same-sex marriage when it's challenged in federal court next week.

In a stunning reversal for a Southern state, newly elected Attorney General Mark Herring, a Democrat, said Thursday that the ban is unconstitutional and the state will instead side with two same-sex couples seeking to strike it down.

The reversal is but the latest in a rapid string of victories for the gay marriage movement. It follows federal court rulings striking down same-sex marriage bans in Utah and Oklahoma. Last June, the Supreme Court legalized gay marriage in California and struck down the federal Defense of Marriage Act.

Seventeen states and the District of Columbia now recognize same-sex marriage. None of them are in the Deep South, which makes Herring's move in Virginia potentially significant.

"I believe the freedom to marry is a fundamental right, and I intend to ensure that Virginia is on the right side of history and on the right side of the law," Herring said during a late morning news conference. "As attorney general, I cannot and will not defend a law that violates Virginians' constitutional rights."

Herring's move comes exactly a week before the first challenge to Virginia's same-sex marriage ban is due to be heard in U.S. District Court for the Eastern District of Virginia. Herring said the case, brought by two gay and lesbian couples, will go forward with two regional Circuit Court clerks defending the ban. In the meantime, the state will continue to enforce it.

MORE: Virginia couples speak out

The state's ban on same-sex marriages, civil unions and domestic partnerships is one of the most sweeping in the nation. It passed in 2006 with 57% of the vote, and Herring himself voted for it at the time. But since then, polls have shown a majority of Virginians support same-sex unions.

Herring's action is similar to what U.S. Attorney General Eric Holder, with President Obama's backing, did in refusing to defend the Defense of Marriage Act. That law, passed in 1996 and signed by President Bill Clinton, defined marriage for federal purposes as between one man and one woman. As a result, married same-sex couples in states that had legalized the practice were not eligible for federal benefits.

When the Justice Department refused to defend the law at the Supreme Court, lawyers representing House Republicans took over its side of the case. They were granted standing to defend the law but lost the case when Justice Anthony Kennedy, writing for a 5-4 majority, said it violated gays' and lesbians' equal protection and due process rights under the 14th Amendment.

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