Twelve days after being sworn in as Virginia's attorney general, Democrat Mark Herring galvanized Virginia politicians and activists last week by shifting the commonwealth's position on a historic lawsuit filed by a gay couple in Norfolk.
During a Jan. 23 press conference in Richmond, Mr. Herring declared he would not defend the commonwealth's constitutional ban on same-sex marriage, a radical shift from Mr. Herring's predecessor's position and prime fodder for conservatives preaching rule of law and the social fabric of our society.
With the attorney general's decision, Virginia's legal position in the prominent gay marriage case, Bostic v. Rainey, sides the commonwealth with the plaintiffs as opposed to the state's constitutional amendment defining marriage as between one man and one woman.
Mr. Herring, the first elected attorney general from Loudoun County, said his decision “is not based on [his] policy preference for marriage rights for same-sex couples.”
The same-sex marriage ban is out of line with the U.S. Constitution, Mr. Herring said.
“It is based on my thorough analysis of the applicable law and the constitutional questions raised by this case,” Mr. Herring said. "As Virginians, we have much to be proud of. But too many times in our history our citizens have had to lead the way on civil rights, while their leaders stood against them. This will not be another instance. It's time for the commonwealth to be on the right side of history and the right side of the law."
While liberals and Democrats rallied around the attorney general's declaration, Mr. Herring's justification did little to calm the rumpus from Republicans and traditional marriage advocates.
Loudoun County Republican activist Patricia Phillips, who contested Mr. Herring in his 2011 state Senate race, questioned why the Democratic attorney general vacated the General Assembly.
“That's where laws are made,” Ms. Phillips said.
Speaking to whether she viewed same-sex marriage in the same civil rights vein as integrated school and inter-racial marriage – comparisons used by Mr. Herring – Ms. Phillips said she doesn't believe the comparisons are apt.
“You can't hide your skin color,” she said.
State Del. Bob Marshall, an outspoken Christian conservative from Northern Virginia, said Mr. Herring “sprung this, like a Pearl Harbor attack, on the people of Virginia.”
Speaking on WAMU's The Kojo Nnamdi Show, Mr. Marshall, similar to Ms. Phillips, dismissed any claims that a ban on gay marriage is equivalent to past prohibitions like integrated schools or inter-racial marriage.
“[Herring's stance] is to attack and undermine the most fundamental relationship between human beings that comes directly from the creator and ought to be protected by the laws of man,” Mr. Marshall said, adding the “bisexuals have to have at least one of each to be satisfied.”
The Northern Virginia delegate promised to fight the attorney general's legal standing and “put Mark Herring back in his constitutional place.”
“Republicans, for years now, have been wanting to duck all these social issues,” Mr. Marshall said. “And their refusal to face up to this and say, 'no I want to talk about economic issues, but he wants to talk about social issues,' [Republicans'] refusal to frame the issue in terms that people understand the common good, as marriage is most essentially beneficial to the common good … ”
Mr. Herring, for his part, has been unflinching in his view the same-sex marriage ban violates the 14th Amendment to the U.S. Constitution.
An attorney general's duty, Mr. Herring said, is not only to defend both state and federal law, but also to fight against laws he or she believes to be unconstitutional.
Virginia voters approved the same-sex marriage ban 57 percent to 43 percent in 2006, yet a Quinnipiac University poll in July found that 50 percent of registered Virginia voters support same-sex marriage, while 43 percent oppose it, according to the Associated Press.
This story has been updated from an earlier version.