Yesterday, Virginia Attorney General Mark R. Herring's office filed an important notice in a lawsuit challenging the state's constitutional ban on gay marriage recognition. His office is reversing course under its new leadership. Herring has decided that the ban is a violation of the Fourteenth Amendment of the U.S. Constitution and "will not defend the constitutionality of those laws, will argue for their being declared unconstitutional, and will work to ensure both sides of the law are responsibly and vigorously briefed and argued before the courts to facilitate a decision on the merits, consistent with the rule of law." He added that his office will still enforce the ban during the challenge, so gay Virginians should not go rushing off to their county clerks' offices just yet.
Herring, a Democrat, acknowledged that he originally voted for this amendment himself when it was passed in 2006, but said in a press conference that he was wrong. Watch his comments below:
Herring noted Virginia's history of defending racial segregation in schools, laws against mixed-race marriages and expressed the desire to, for once, "be on the right side of history," a phrase that always used to baffle me but that I've now come to realize is just simply code for "The polls have shifted and I don't see them shifting back anytime soon."
Anyway, according to The Washington Post, some Republican lawmakers are looking around for a way to defend the law without Herring's support. Herring is also accused of hypocrisy for criticizing former Republican Attorney General Ken Cuccinelli as using the office for his own type of activism. Indeed, the petition submitted by Herring's office even uses Cuccinelli's refusal to defend a constitutional challenge to a law last year as a precedent for Herring's decision. Any attorney general candidate claiming to want to reduce the politicization or activism of the office should be laughed at in any event.
Meanwhile, also keep an eye on Indiana. Lawmakers there are trying to buck the current trend toward recognizing gay marriages. They are trying to put an amendment to the state's constitution before voters in November that would not only block recognition but also similar arrangements like civil unions.