New Va. Attorney General Declares Same-Sex Ban Unconstitutional

In his second week in the job, Virginia Attorney General Mark Herring announced that his office will no longer defend the state's ban on same-sex marriages. Herring says he has concluded that the ban violates the Equal Protection Clause of the 14th Amendment and is therefore unconstitutional.

ROBERT SIEGEL, HOST:

From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.

MELISSA BLOCK, HOST:

And I'm Melissa Block. Virginia's newly elected attorney general announced today that he will not defend the state's ban on same-sex marriage. Democrat Mark Herring revealed his decision this morning on NPR's MORNING EDITION. He says he wants to ensure that Virginia is, as he puts it, on the right side of history and the law. NPR's Brian Naylor reports.

BRIAN NAYLOR, BYLINE: Mark Herring took office less than two weeks ago, but he's wasted no time in making his mark on Virginia politics and on the anti-gay marriage law, coming down solidly on the side of its opponents.

MARK HERRING: 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.

NAYLOR: Herring had little choice but to move quickly on same-sex marriage. A challenge to the ban by two Virginia couples is scheduled to be heard by a federal judge in Norfolk a week from today. The ban was approved by the voters in a 2006 referendum; a ballot test that Herring, then a state senator, supported having, at the time. Since then, he says, his views have changed.

HERRING: 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.

NAYLOR: Democratic state Sen. Adam Ebbin is the first openly gay member in the more than 400-year history of the Virginia General Assembly. He says it's a good day to be a Virginian.

STATE SEN. ADAM EBBIN: I've seen too many gay and lesbian couples leave Virginia because of this amendment. And it's time that all of Virginia's citizens become equal in the eyes of the law.

NAYLOR: Herring's decision follows recent rulings by federal courts to overturn similar same-sex marriage bans in Utah and Oklahoma, and the attorney general of Pennsylvania last year refused to defend that state's similar ban. In all, there are suits in more than a dozen states challenging the prohibition of same-sex marriage, and the U.S. Supreme Court is expected to decide the issue in the end.

Supporters of Virginia's law lashed out at Herring. Victoria Cobb, president of the Family Foundation of Virginia, says the state's law was approved by 57 percent of the voters.

VICTORIA COBB: It's disappointing that, you know, he would leave over a million Virginia citizens defenseless after legally voting for an amendment that he himself supported when he was in the legislature.

NAYLOR: And the chairman of the state Republican Party, Pat Mullins, accused Herring of doing the president's bidding.

PAT MULLINS: We have a constitutional amendment that he has personally chosen to ignore. He doesn't like the amendment, so he's going to ignore it, and he's going to challenge it. If he gets away with this one, how many other things do we have within our Constitution, within our laws, he's going to decide he personally doesn't like; or Barack Obama calls him and says, get rid of that one; and he's going to do it.

NAYLOR: Herring won in November by a razor-slim margin, completing a sweep of Virginia's top offices by Democrats and continuing the trend that has seen the state turn increasingly blue, including two victories there by President Obama. That trend can be seen in support for same-sex marriage as well. While a majority of voters did approve the ban some eight years ago, a recent poll indicated most Virginians now support same-sex marriage. And those supporters hope the current ban will be overturned, just as the state's ban on interracial marriage was a generation ago.

Brian Naylor, NPR News, Washington.

Copyright © 2014 NPR. All rights reserved. Visit our website terms of use and permissions pages at www.npr.org for further information.

NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.