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VA's Attorney General Won't Defend Marriage Ban; Can Someone Else?

By William Peacock, Esq. on January 23, 2014 | Last updated on March 21, 2019

It looks like Virginia may soon join the ranks of the states that recognize gay marriages.

This morning, the new Attorney General for the Commonwealth of Virginia, Mark R. Herring, announced that he would stop fighting to uphold the state's voter-approved ban on gay marriage, and would instead join the other side of the federal lawsuit, reports The New York Times.

And to think, just last year, the then-Attorney General for the Commonwealth of Virginia, Ken Cuccinelli, was fighting tooth-and-nail to uphold the state's anti-sodomy law.

Herring's Announcement

On Thursday, after filing a brief to notify the federal court in Norfolk of the state's changed position, Herring made the switch public in a news conference.

"After thorough legal review, I have now concluded that Virginia's ban on marriage between same sex couples violates the Fourteenth Amendment of the U.S. Constitution on two grounds: marriage is a fundamental right being denied to some Virginians, and the ban unlawfully discriminates on the basis of both sexual orientation and gender," he told the assembled reporters.

The announcement comes less than a month after the recently-elected Democrat took office, and after judges in Utah and Oklahoma struck down similar laws in those states.

Moot the Case?

Is the federal case over?

It's hard to say. As we saw in the Supreme Court's decisions in Perry and Windsor, standing is a tricky thing to show in these cases. Now that the Commonwealth's Attorney General has abdicated the defendant's seat, someone else, who can demonstrate standing, has to step in.

Here, the constitutional amendment was both legislative and voter-approved, which throws it into the murky waters between Perry and Windsor.

In Perry, the California initiative was a purely voter-approved measure. When the state dropped out, the Supreme Court held that no one else could step in, not even the private organization that got the initiative on the ballot.

Conversely, in Windsor, a group of federal lawmakers were able to step in and defend the Defense of Marriage Act (to no avail), because they played a role in the law's passage and had an official role in the government.

The common thread seems to be this: if you worked on the law, and you have an official title, you can show standing. Now, all the case needs is a willing defendant from the Virginia General Assembly, which passed the Marshall-Newman Amendment, and put it on the ballot for voters to approve.

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