Virginia may approve same-sex marriage

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.


  1. colnago80 says

    This is confirmation of the contention of the late Elizabeth Drew that elections have consequences. Anyone who says the two parties are Tweedledum and Tweedledee is smoking lefty luckies. If Herring’s opponent, Rethuglican gay bashing reactionary Mark Obershain had won, he would have been front and center defending the law before the federal court.

    By the way, for anyone who claims that his/her vote doesn’t count, consider the special election to fill the state senate seat formerly occupied by newly elected Lieutenant Governor Ralph Nordham. Currently, the Democrat is ahead by 8 votes. The reason why this is crucial is that, if the Democrat wins, the state senate will be evenly divided 40 40, giving Nordham the deciding vote as the presiding officer, if the there is a complete partisan split. It also means that the current minority leader in the senate, Richard Saslaw would become the majority leader.

  2. Nightshade says

    While Herring may have changed his view,it’s debatable that the state has. Most of the laws against homosexual marriage have been overturned by the Courts in spite of popular support.Given how often the courts have to correct the people we ought to question the premise that: Democracy is the best form of government.

  3. colnago80 says

    Re Nightshade @ #5

    I would agree that another referendum on non-recognition of same sex marriage would probably pass in Virginia but that it would be much closer then 57% to 43%. The fact that folks like Senator Warner and Attorney General Herring have changed their positions is evidence that they consider that the issue is no longer an election killer. Let’s recall that Obama and Hillary were opposed to the idea as recently as 2008.

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