Newly elected Virginia Atty. Gen. Mark R. Herring filed a court opinion Thursday declaring the state’s voter-approved ban on gay marriage unconstitutional and announcing his office will no longer defend the law.
The decision follows recent federal court opinions striking down gay marriage bans in Utah and Oklahoma. Herring, after instructing his office to review the lawsuit challenging the law, concluded the statute is discriminatory because it denies some citizens the fundamental right to marry.
“Having exercised his independent constitutional judgment, consistent with his oath of office, the attorney general has concluded that Virginia’s laws denying the right to marry to same-sex couples violate the 14th Amendment to the United States Constitution,” he wrote in his opinion to the federal court in Norfolk.
The Virginia ban was approved by voters in 2006, with 57% of voters in favor. Since then, public opinion on the issue has shifted. In 2013, a majority of registered voters -- 56% -- said gay marriage should be legal, according to a Washington Post poll.
A Democrat, Herring’s announcement reverses the position of his predecessor, Republican Ken Cuccinelli, who was outspoken in his opposition to gay marriage during his campaign for governor, which he lost to Gov. Terry McAuliffe.
Although Herring’s decision now puts the state on the side of those challenging the law, today’s brief instructs state officials to continue enforcing the statute while the courts are deciding the matter.
An attorney for the Virginia plaintiffs, Theodore B. Olson, who also helped defeat California’s Proposition 8 before the Supreme Court last year, applauded Herring’s decision.
“As a Virginian and a conservative, I believe these laws stand against the very principles of our nation’s founding,” he said in a statement. “Virginia’s laws violate core personal freedoms. They are humiliating and demeaning, and they harm loving families.”
[For the Record, 10:31 a.m. PST Jan. 23: An earlier version of this post said Virginia Atty. Gen. Mark R. Herring had announced his office would no longer challenge the state’s ban on gay marriage. He announced that his office would no longer defend the ban.]