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Virginia attorney general won't defend gay marriage ban

By Gary Robertson and Susan Heavey

RICHMOND, Va./WASHINGTON (Reuters) - Virginia will no longer defend its ban on same-sex marriage, the state's new attorney general said on Thursday, making it the latest U.S. state to challenge a prohibition on gay marriage.

Attorney General Mark Herring said the southern state's constitutional amendment defining marriage as a union between a man and a woman was part of a long history of opposing landmark Supreme Court rulings on civil rights.

"This will not be another instance. It is time for the commonwealth to be on the right side of history and the right side of the law," said Herring, who took office in January along with newly elected Democratic Governor Terry McAuliffe, after four years of Republican state rule.

Herring told a news conference the same-sex marriage ban violated the 14th Amendment of the U.S. Constitution, which provides for equal protection of the laws, and infringed on the rights of families.

Herring's move underscores the state's political battles and shifting demographics as Democrats try to cement their hold on the once solidly Republican state, highlighted by the divided reaction to his decision.

Virginia's legal turnabout is the latest in a series of state-based challenges on the issue. Federal judges recently overturned such bans in Oklahoma and Utah.

Herring filed a brief on Thursday in federal court in Norfolk, noting the state's change of stance in Bostic v. Rainey, a case that challenged Virginia's ban on same-sex marriage.

Herring said the constitutional ban would remain in place and the Norfolk case would go forward, but neither he nor State Registrar of Vital Records Janet Rainey would defend it as constitutional.

The attorney general said his decision was aimed at changing Virginia's history of opposing landmark civil rights rulings by the Supreme Court. They included those on school desegregation in 1954, interracial marriage in 1967 and allowing women to enter Virginia Military Institute in 1996, he said.

SUPREME COURT

Seventeen states plus the District of Columbia recognize gay marriage, including eight states where same-sex marriage became legal in 2013. Thirty-three ban gay couples from marrying by state constitutional amendment, statute or both.

Virginia's reversal follows two major Supreme Court rulings on the issue last year.

One struck down the Defense of Marriage Act, a law that denied federal benefits to legally married same-sex couples. The other paved the way for gay marriage to resume in California. But those rulings did not address whether state bans on same-sex marriage were constitutional.

In 2006, 57 percent of Virginians voted in favor of the constitutional ban. But reflecting the swing in public opinion, a poll released in October by Virginia's Christopher Newport University showed that 56 percent of likely voters opposed the ban, with 36 percent favoring it.

Mixed reaction to Virginia's announcement echoed the political division in the state.

Herring's predecessor, Republican Ken Cuccinelli, was a vocal opponent of gay marriage. While Herring, a Democrat, also opposed gay and lesbian marriage while a state senator, he said his views had changed once he saw how his vote had harmed many people.

"Today actions by Virginia's chief legal officer continue America's evolution on this issue," Amanda Goad, an attorney with the American Civil Liberties Union's Lesbian Gay Bisexual and Transgender Project, said in a statement.

Herring's stance was also applauded by the Human Rights Campaign, which campaigns against discrimination against gays.

But others said Herring was failing to do his job upholding state law.

"Mark Herring's decision today not only abandons his first duty, it hobbles this vital legal process. It turns what could have been landmark jurisprudence into a political farce," said Pat Mullins, head of the Republican Party of Virginia. He called on Herring to resign.

In another Virginia case in federal court, two lesbian couples are suing the state in an attempt to overturn the ban on same-sex marriage. They asked a federal judge in October to certify it as a class-action lawsuit.

(Additional reporting by Doina Chiacu and Ian Simpson in Washington and Joseph Ax in New York; Editing by Scott Malone, Rosalind Russell, Chizu Nomiyama and Gunna Dickson)

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