Attorney General Mark Herring set gay rights groups buzzing with his recent decision not to defend a Virginia law banning same-sex marriage.
While this decision doesn’t invalidate the law, it does send a powerful message to lesbian, gay, bisexual, and transgender folks that a state official is on their side.
“It’s a dream that so many of us never ever imagined that we would realize in Virginia,” said Bill Harrison, executive director of the Gay Community Center of Richmond. “I’ve been an activist since the late 1970s, and this is something I never imagined to see — to see an elected official do for us.”
The decision may also affect further policy on similar matters, even if it doesn’t have a direct effect on the current case, according to Robert M. O’Neil, professor emeritus of law at the University of Virginia School of Law.
“The attorney general’s recent ruling will certainly affect policy on the ground, even though the resolution of the pending litigation will be eagerly awaited in and beyond Virginia,” he said.
While Herring will not defend the law, that doesn’t mean the case is stalled.
“The attorney general has declined to defend the constitutionality of Virginia’s ban against same-sex marriage, but others will do so,” said John C. Jeffries Jr., a David and Marry Harrison Distinguished Professor of Law at the University of Virginia School of Law.
“Some county officials are also defendants,” he pointed out. “Until the court decides the case, the law remains unchanged.”
That’s as it should be, according to David Weintraub, one of the founders of Equality Loudoun.
“The best scenario for all is for the proponents of the ban to make the very best case they can make, and get a full and fair hearing in court so that these cases can be decided on the merits,” he said. He also pointed out that a vigorous hearing can best be achieved only if the attorneys defending the ban “honestly believe in the constitutionality of the ban they’re defending,” which would not have been the case had Herring taken on the task.
Additionally, O’Neil pointed out that Herring may be adhering to a higher authority than state law — the U.S. Constitution.
“Many people fail to fully understand the degree to which the U.S. Constitution is preemptive and pervasive as the law of the land,” he said. “It trumps or supersedes even a state constitutional provision to the contrary.”
In light of the U.S. Supreme Court’s decision last year invalidating the federal Defense of Marriage Act, O’Neil said Herring’s decision seems quite sound.
Whether or not the attorney general’s actions will have a lasting impact on government policy remains to be seen, but in the meantime, LGBT advocates are pleased with what could be seen as a signal of changing public sentiment since the law was passed eight years ago.
“Knowing that the people of our state have elected leaders like Mark Herring who support our civil equality and dignity affirms what we already know from polling,” Weintraub said. “A significant number of Virginians have listened to their LGBT friends, family members and neighbors, and have changed their minds about marriage equality since 2006.”