AP

Federal judge set to hear arguments on whether Va.%27s ban on gay marriage should be struck down

Move would have the potential to give gay marriage its first foothold in the South

In January%2C state attorney general%27s office notified the federal court in Norfolk he wouldn%27t defend ban

NORFOLK, Va. (AP) — In a case that could give gay marriage its first foothold in the old Confederacy, a federal judge will hear arguments Tuesday on whether Virginia's ban on gay marriage should be struck down — the position the state's newly elected Democratic attorney general has endorsed, angering many Republican lawmakers.

In January, Attorney General Mark Herring's office notified the federal court in Norfolk that it would not defend the 2006 voter-approved constitutional amendment in a lawsuit — a move with the potential to give gay marriage its first foothold in the South. Republicans have accused Herring of abandoning his responsibility to defend the state's laws and a handful of protesters gathered at the federal courthouse Tuesday morning shouted phrases decrying his position and carried signs such as "Herring's herring. AG's must uphold the law."

Across the street, about just as many gay-marriage supporters shouted their support for the plaintiffs in the case and carried signs saying "Marry who you love."

Newly elected Democratic Gov. Terry McAuliffe has rebuffed calls to appoint outside counsel to defend the ban. On Monday, Republicans in the House passed a bill that would give lawmakers standing in lawsuits where the attorney general and governor have chosen not to participate.

With the Herring's office deciding to side with the plaintiffs in the case, the job of defending the law during verbal arguments will fall to the legal team of Norfolk's Circuit Court clerk. In addition, an attorney for the religious group Alliance Defending Freedom will present arguments on behalf of the Prince William County's clerk, which has been allowed to intervene in the case, as to why the law should be upheld.

Herring plans to attend Tuesday's hearing, although Virginia Solicitor General Stuart Raphael will argue in court on behalf of the state.

The lawsuit challenging the ban was filed on behalf of Norfolk couple Timothy Bostic and Tony London, who were denied a marriage license by the Norfolk Circuit Court on July 1. The lawsuit says the state's law denies them liberties that are guaranteed by the 14th Amendment. Since then, Chesterfield County couple Carol Schall and Mary Townley have joined the case. The couple were married in California in 2008 and have a teenage daughter. They want Virginia to recognize their marriage.

The attorneys representing the plaintiffs on behalf of the American Foundation for Equal rights are the same ones that successfully challenged California's ban on gay marriage in court there.

After Herring's office decided not to defend the law, U.S. District Judge Arenda L. Wright Allen considered not even hearing verbal arguments in the case because of the "compelling" filing by the attorney general's office. Wright Allen is a former public defender and assistant U.S. attorney who was appointed to the post by President Barack Obama.

The lawsuit was filed shortly after the U.S. Supreme Court struck down the section of the federal Defense of Marriage Act that prevented gay couples from receiving a range of federal benefits that are generally available to married people.

Herring's announcement last month came on the heels of court rulings in which federal judges struck down gay-marriage bans in Utah and Oklahoma.

Currently 17 states and the District of Columbia allow gay marriage. Most are clustered in the Northeast; none is in the former Confederacy.

Nationwide, there are more than a dozen states with federal lawsuits challenging state bans on same-sex marriage.