Constitutional Law

Virginia attorney general won't defend state ban on same-sex marriage

Virginia Attorney General Mark Herring will notify a federal court in Norfolk today that his office will no longer defend the state’s ban on same-sex marriage.

Herring believes the ban is unconstitutional, his spokesperson told the Associated Press. The Washington Post also has a story based on two anonymous sources.

The Washington Post says Herring’s action “will mark a stunning reversal in the state’s legal position on same-sex marriage and is a result of November elections in which Democrats swept the state’s top offices.” Herring has been in his post for just two weeks after a late-decided election. The story adds that “an uproar is likely.”

Herring’s brief will cite another Virginia case, Loving v. Virginia. He will argue the case upheld a fundamental right to marriage, not just a right to interracial marriage.

His brief will also point out that the state law is being defended by separate lawyers representing two court clerks. A lawyer for one clerk defendant is being funded by the state’s Department of Risk Management. Another court clerk who sought to intervene is represented by the group Alliance Defending Freedom.

The lawyers representing two same-sex couples challenging the Virginia law are Theodore Olson and David Boies, who also challenged California’s ban on same-sex marriage.

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