Virginia's New Attorney General Will Not Defend Gay-Marriage Ban

Enlarge this image toggle caption Steve Helber/AP Steve Helber/AP

Virginia's new attorney general has decided to switch sides in an important case that is challenging the state's constitutional ban on gay marriage.

In an interview with Morning Edition's Steve Inskeep, Democrat Mark Herring said his office will no longer defend the state's ban on same-sex marriages.

"As attorney general, I cannot and will not defend laws that violate Virginians' rights," Herring said. "The commonwealth will be siding with the plaintiffs in this case and with every other Virginia couple whose right to marry is being denied."

Herring was sworn in just days ago after a razor-thin win in November, an election that marked big political change in the state and also ushered in Democrat Terry McAuliffe to the governor's mansion. Herring is taking over for Ken Cuccinelli, a Republican who ran and lost a bid for governor on a Tea Party platform and was a staunch defender of the gay-marriage ban.

On 'Morning Edition': Virginia Attorney General Mark Herring talks about why he will not defend the state's ban on same-sex marriages. Listen

On 'Morning Edition': NPR's Carrie Johnson talks about the national implications of the Virginia attorney general's decision. Listen

Herring said as he came into office, he asked his staff to review Bostic v. Rainey and, after careful consideration, he came to the conclusion that the ban violates the Equal Protection Clause of the 14th Amendment of the Constitution.

Bostic v. Rainey is one of those cases that are being closely watched. The lawyers challenging the Virginia ban, for example, are David Boies and Ted Olson, who represented the couples who took California's ban on gay marriage all the way to the U.S. Supreme Court.

While there are several cases moving through the system that could end up in the high court — one from Utah and one from Oklahoma, for example — this is one that marriage equality advocates would like to see reach the top.

Back in September, when Boies and Olson announced they were joining the case, they said they saw the California Proposition 8 case as the beginning "of our fight for marriage equality."

"What we're hoping, with the case in Virginia, [is] it's the beginning of the end," Boies said.

Herring's solicitor general will tell a federal judge in Norfolk next week that Virginia is joining the plaintiffs in the case, that the state agrees a ban on gay marriage denies some couples in the state what the Supreme Court has called a fundamental right.

Herring said he's doing it for Virginians. That's when Steve reminded him that the amendment to Virginia's Constitution defining marriage as only between a man and woman was approved by 57 percent of voters in 2006.

Herring said that his job is to defend laws that are constitutional. This one, he said, isn't. Also, Herring added, he wants his state to be on the right side of history.

"There have been times in some key landmark cases where Virginia was on the wrong side, was on the wrong side of history and on the wrong side of the law," Herring said. "And as attorney general, I'm going to make sure that the [people] presenting the state's legal position on behalf of the people of Virginia are on the right side of history and on the right side of the law."

Herring also admitted that this issue has been a personal journey for him. In 2006, when he was a member of the state Senate, he voted against marriage equality.

At the time, he said, he was speaking out against discrimination.

"I was wrong for not applying it to marriage," Herring said. "I saw very soon after that how that hurt a lot of people and it was very painful for a lot of people."

After talking to constituents and his family, including his children, he came to "see the issue differently."

Herring's decision doesn't mean an end for Bostic v. Rainey. There are other defendants on the case who will argue in favor of the gay-marriage ban.

Much more of Steve's interview with Herring is on Thursday's Morning Edition. Click here for an NPR station near you.

Update at 1:20 p.m. ET. Herring's Decision Is "Disappointing And Really Frightening":

Later on Thursday, Victoria Cobb of The Family Foundation told Morning Edition that "it's just disappointing and really frightening" that Herring would come out against an amendment to the state constitution that was put there after a vote by the state's citizens. She also said Herring should have been "honest and straightforward" about his intentions during last year's campaign.

Cobb's foundation says its mission "is to strengthen families in Virginia by applying founding principles and faith to policy and culture."