Virginia AG Declines to Defend Same-Sex Marriage Ban

"PLEASE TAKE NOTICE that the Office of the Attorney General of Virginia, on behalf of Defendant Janet M. Rainey, in her official capacity, hereby changes the legal position of the Commonwealth in this action. 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 Fourteenth Amendment to the United States Constitution. The Attorney General will not defend the constitutionality of those laws, will argue for their being declared unconstitutional, and will work to ensure that both sides of the issue are responsibly and vigorously briefed and argued before the courts to facilitate a decision on the merits, consistent with the rule of law ..."

Virginia Solicitor General Stuart A. Raphael, January 23, 2014.

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“I swore an oath to both the United States Constitution and the Virginia Constitution. 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. Virginia has argued on the wrong side of some of our nation’s landmark cases - in school desegregation in 1954, on interracial marriage with the 1967 Loving decision, and in 1996 on state-supported single-gender education at VMI. It’s time for the Commonwealth to be on the right side of history and the right side of the law.

The supporters of Virginia’s ban on same-sex marriage have argued in their legal brief that marriage between a man and a woman best promotes responsible procreation and optimal child rearing. This argument not only disrespects Virginia’s same-sex couple families, but it is illogical. It is simply inconceivable that denying same-sex couples the right to marry will make heterosexual couples more likely to marry and have children. Virginians should no longer face discrimination and economic hardship based on whom they love and commit their lives to. Writing for the Court in 2003 in the Lawrence v. Texas case, Justice Kennedy explained that the Constitution’s framers ‘knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.’ The Registrar and local clerks will continue to enforce the ban until the courts can act, but the Registrar and I will not defend it, and will argue for its being declared unconstitutional.”

Virginia Attorney General Mark Herring, January 23, 2014.