Herring: Virginia on the right side of history in same-sex marriage fight

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Virginia has too often been on the wrong side of civil rights cases, but today the state “got it right,” according to Virginia’s newly-elected Attorney General, Mark Herring, said as he explained his decision to take the plaintiff’s side in a constitutional challenge to the state’s same-sex marriage ban.

A federal judge Tuesday heard oral arguments in a challenge to the Bostic v. Rainey case. Herring announced last month that he would not defend the law, but rather side with the plaintiffs in the case, and seek to have it declared unconstitutional.

Herring attended Tuesday’s arguments.

“Today was very significant day in the journey toward full equality under the law for all Virginians. I am proud to say that today the Commonwealth of Virginia stood on the right side of the law and the right side of history in opposing this discriminatory ban,” Herring said in a post-hearing press call. “This case is fundamentally about whether Virginia can legally treat same sex couples as second class citizens or whether the U.S. Constitution truly guarantees equality under the law.”

According to Herring, a Democrat, “Virginia has too often found itself on the wrong side of landmark civil rights cases,” including Brown vs. Board of Education.

“The injustice of Virginia’s position in those cases will not be repeated this time and today the Commonwealth of Virginia got it right,” he said.

When asked about precedent for an attorney general’s office taking the side of the plaintiff in a case against his or her state, Herring cited Attorney General Eric Holder’s position in the United States vs. Windsor case in which the Supreme Court struck down portions of the Defense of Marriage Act.

Herring’s Republican predecessor, Ken Cuccinelli, was a strong defender of traditional marriage. Herring was also an opponent of same-sex marriage, voting in 2006 as a state senator against the practice.

“I was wrong for not applying [discrimination] to marriage,” Herring told NPR last month. “I saw very soon after that how that hurt a lot of people and it was very painful for a lot of people.”

And while he evolved to support same-sex marriage, he was elected by a slim majority, promising during the campaign to try to find a basis to defend the constitutional amendment despite his personal objections.

The District court judge today said there would be a decision in the case soon.

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