Mark HerringWhat a difference an election makes. Virginia’s new Attorney General Mark Herring has decided that he will not defend the current legal challenge to the state constitutional amendment banning marriage equality. Not only that, but he will actually join the two couples who filed the suit in federal court to strike the law down.

“Virginia has argued on the wrong side of some of our nation’s landmark cases – in school desegregation in 1954, on interracial marriage in the 1967 Loving decision and in 1996 at opening Virginia Military Institute to female cadets,” Herring said in a news conference. “It’s time for the commonwealth to be on the right of history and on the right side of the law.”

Herring won the Attorney General’s race by just 1,000 votes last November, replacing Ken Cuccinelli, the rabidly antigay Republican who wanted to reinstate Virginia’s sodomy laws. As one of his final acts, Cuccinelli, who lost the race to become governor last year, took one last slap at same-sex couples, issuing an opinion that the new Governor, Terry McAuliffe, can’t force the state to allow those couples to file joint income tax returns. Fortunately, the opinion is non-binding.

It’s also a change of heart for Herring himself. As a state legislator, he voted against marriage equality in 2006. “I saw very soon after that how that hurt a lot of people and it was very painful for a lot of people,” Herring told NPR. He said that his children were instrumental in helping convince him that he had been wrong.

In between watching each other’s heads explode in disbelief, opponents of marriage equality complained that Herring was failing to uphold the law, as his oath of office requires. However, Herring is following the lead of other state attorney generals and of the Obama Administration in refusing to defend challenges to marriage bans.

Since passing the constitutional amendment in 2006, Virginians have dramatically shifted their views on marriage equality. The measure passed 57% to 53%, but recent polls show that a majority of Virginians now support it.

The Virginia case may well be the one that decides the future of marriage equality nationally. Theodore Olsen and David Boies, the attorneys who brought the Proposition 8 challenge to the Supreme Court, are handling the Virginia case as well. The pair want to bring the eventual lower court ruling in that case to the Supreme Court to make the Court decide once and for all that marriage equality should be the law of the land.

Photo credit: Virginia Attorney General’s website



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