Richard Wolf

USA TODAY

Newly elected Democratic attorney general switches sides in case

Move is latest in string of gay marriage victories

First case against ban due in court next week

Virginia's attorney general won't defend the state's constitutional amendment banning same-sex marriage when it is 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.

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.

That's the same conclusion Herring reached after reviewing the case. And he cited the state's past stand against other forms of civil rights -- including public school integration in the 1950s, interracial marriage in the 1960s and allowing women to attend the Virginia Military Institute in the 1990s -- as something he did not want to repeat.

"Too many times in our history, our citizens have had to lead the way on civil rights while our leaders stood against them. This will not be another instance," he said.

State Republican Party Chairman Pat Mullins criticized Herring for abdicating his duties. "For a court to make a determination on an issue with this much gravity, both sides need to be ably represented," Mullins said Thursday. "Mark Herring's decision today not only abandons his first duty, it hobbles this vital legal process. It turns what could have been landmark jurisprudence into a political farce."

The reversal represents stark proof that every vote is important. Herring won the attorney general's race in November by a scant 165 votes out of more than 2 million cast; necessitating a statewide recount. His Republican opponent, Mark Obenshain, who finally conceded the race on Dec. 18, opposed same-sex marriage rights, as did former Republican attorney general Ken Cuccinelli.

The case was brought by Tim Bostic and Tony London, a gay couple from Norfolk, and later joined by Carol Schall and Mary Townley, a lesbian couple from Richmond. Another case on the western side of the state was brought by two lesbian couples as a class action on behalf of all same-sex couples seeking marriage rights in Virginia.

The Norfolk case features two heavyweight lawyers, conservative Theodore Olson and liberal David Boies, who joined together to fight California's Proposition 8 ban on same-sex marriage before the Supreme Court last year. They were on opposite sides of the titanic Bush v. Gore case that ultimately decided the presidency in 2000.

On Thursday, Olson hailed the attorney general's actions, which he said "have brought Virginia that much closer to the quintessential American ideals of equality under the law and the freedom to pursue happiness."

Across the nation, more than 40 lawsuits seeking marriage rights for gays and lesbians are pending in 20 states.

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