Virginia Abandons Defense of Same-Sex Marriage Ban

, The National Law Journal

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Virginia Attorney General Mark Herring filed court papers Thursday morning alerting a federal judge that he would no longer defend the state's ban on same-sex marriage.

The state will continue to enforce the ban until a court strikes it down, but Stuart Raphael, the state’s solicitor general, said in the court filing that Herring had concluded the ban violates the Fourteenth Amendment.

Herring's predecessor, Ken Cuccinelli II, a Republican, was a staunch opponent of same-sex marriage. Herring, a Democrat, was sworn in to office earlier this month.

The announcement was welcomed by the plaintiffs' legal team, including David Boies of Boies, Schiller & Flexner and Theodore Olson of Gibson, Dunn & Crutcher. The two previously joined forces to lead the legal challenge to California's ban on same-sex marriage.

After California's governor and attorney general refused to defend the ban, same-sex marriage opponents stepped in to defend it. In June, the U.S. Supreme Court found the opponents lacked standing, meaning a lower court ruling blocking enforcement of the law remained in effect.

"Attorney General Herring’s actions today have brought Virginia that much closer to the quintessential American ideals of equality under the law and the freedom to pursue happiness," Olson said in a written statement. "We are grateful for his leadership and look forward to working with him to strike down Virginia’s odious marriage ban.”

Olson is a partner at Gibson Dunn and co-chairman of the firm's appellate and constitutional law group. Boies is chairman of Boies Schiller.

Lawyers for Virginia filed papers this morning in the U.S. District Court for the Eastern District of Virginia explaining the attorney general's new position, as well as an amended answer to the complaint admitting to the plaintiffs' claims that the ban violates the U.S. Constitution.

Herring, in a statement, pointed to a series of cases in which Virginia had been on the "wrong side" of landmark court decisions, including Loving v. Virginia, a 1967 ruling by the U.S. Supreme Court striking down the state's law barring interracial marriage, and United States v. Virginia, a 1996 ruling by the high court requiring the Virginia Military Institute to admit qualified women.

Marriage equality advocates praised Herring's decision. Adam Umhoefer, executive director of the American Foundation for Equal Rights, said in a written statement that he hoped politicians in other states would follow Herring's lead. The foundation is sponsoring the court case in Virginia, Bostic v. Rainey.

"The majority of Americans and the majority of Virginians agree that loving, committed couples like our plaintiffs Mary & Carol and Tim & Tony deserve the dignity and respect that comes with marriage," Umhoefer said.

Another challenge to Virginia's ban on same-sex marriage, Harris v. McDonnell, is pending in the Western District of Virginia. The American Civil Liberties Union of Virginia, which is part of the plaintiffs' legal team, released a statement today saying it expects the attorney general's office to file documents in that case similar to those filed today in the Bostic case.

Contact Zoe Tillman at ztillman@alm.com.

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