Virginia may become the first southern state to legalize same-sex marriage if a court there decides to overrule a current ban. If so, it would join Utah and Oklahoma in that situation and it illustrates once again how states and individuals have changed their views over time. It is expected that the plaintiffs will likely use the same arguments that were successful in the other two cases, using the US Supreme Court’s reasoning (including justice Scalia’s dissent against the decision) in last year’s Windsor case that the Equal Protection clause of the 14th Amendment required the state to treat all marriages equally, irrespective of gender.
In 2006 Virginia, like so many other states around that time, passed with 57% of the vote a constitutional amendment banning same-sex marriage. Two same-sex couples sued to overturn the law and today the newly elected Attorney General Mark Herring said that he would not defend the law because he thinks it is unconstitutional, and that the state will switch sides from defending the ban to opposing it. Herring had voted against same-sex marriage eight years ago, when he was a state senator.
At a news conference in Richmond, Herring said that the state has been on the wrong side of landmark legal battles involving school desegregation, interracial marriage and single-sex education. He made the case that Virginia should be on the right side of the law and history in the battle over same-sex marriage.
U.S. District Judge Arenda L. Wright Allen has scheduled oral arguments for Jan. 30 in the Norfolk case. It received a jolt of attention last fall when lawyers Theodore B. Olson and David Boies, who brought the federal challenge of Proposition 8, announced that they were joining the plaintiffs’ side.
In addition, the American Civil Liberties Union is challenging the Virginia ban in a federal suit in Harrisonburg. That case is not as far along.
Elections can make a difference. Democrat Herring was sworn to office just two weeks ago after a very close race against his Republican opponent. He has the support of the new governor Terry McAuliffe, another Democrat who came into office this year, after Republicans had occupied that office too.