Virginia Attorney Genera lMark Herring [official profile] announced [press release] Thursday that his office will no longer defend legal challenges to the commonwealth's ban on same-sex marriage. Herring explained his position saying, "After thorough legal review, I have now concluded that Virginia's ban on marriage same sex couples violates the Fourteenth Amendment [text] of the US 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." Herring's choice to refuse to defend the law is rare but not unprecedented. Former Virginia attorney general Jerry Kilgore joined with 43 other state attorneys general in a legal brief to argue that an attorney general is properly carrying out his constitutional duties when he seeks to invalidate a law that he believes to be unconstitutional. Virginia's shift in legal position [press release] came after the inauguration of Governor Terry McAuliffe [official website], who replaced Bob McDonnell after he was indicted for accepting gifts while in office [BBC report], and Herring replaced Ken Cuccinelli as attorney general. The previous administration defended the same-sex marriage ban.
The heated debate over same-sex marriage [JURIST backgrounder] is one of the most polarizing issues currently facing the American legal community, with legal challenges before numerous state and federal courts. In October Lambda Legal [advocacy website] filed a federal lawsuit [JURIST report] in West Virginia challenging the state's ban on same-sex marriage. In September an Illinois judge allowed two lawsuits challenging the state's ban on same-sex marriage to proceed to trial [JURIST report]. Also in September a New Jersey judge ruled that same-sex couples must be allowed to marry [JURIST report]. Earlier in the month two lawsuits were filed in Pennsylvania seeking recognition for same-sex marriages performed outside the state, as well as marriages performed within the state [JURIST reports] when a county clerk was issuing same-sex marriage licenses despite a state ban.