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Religious Tolerance logo

Virginia: Recognition of same-sex relationships and LGBT equality

Part 4:
2013-JAN: Attorney General's office reverses
position about marriage equality (Cont'd).
2013-JAN: Harris v. McDonnell case proceeds.

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"LGBT" is an acronym referring to the Lesbian, Gay,
Bisexual, and Transgender/Transsexual community.
SSM refers to same-sex marriage

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This topic is a continuation from the previous essay

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2014-JAN-23: Virginia Attorney General reverses his office's position on SSM (Cont'd):

sign by demonstrator Sign held by male demonstrator opposed to marriage equality.

Tony Perkins is president of the Family Research Council, a conservative Christian para-church organization, which has been designated by the Southern Poverty Law Center as an anti-gay hate group. 1 Perkins said:

"This lawlessness is an insult to the voters of Virginia who approved the marriage amendment by a large majority. The 'left' is becoming a law unto itself." 2

Perkins may not be aware that there has been a major shift in voters' opinions since 2006 when the amendment was passed, Recent polls show that a significant majority of Virginia voters now support same-sex marriage. So if the voters were asked to pass the same amendment today, they would almost certainly reject it.

The Family Foundation of Virginia, a conservative group, called the AG's decision "disappointing and frightening."

William J. Howell, the Republican speaker of the Virginia House of Delegates said that Herring was setting a:

"dangerous precedent. ... The attorney general has a constitutional and statutory obligation to enforce and defend the duly adopted laws and Constitution of Virginia. ... This is not an obligation that can be taken lightly." 3

AG Mark Herring had campaigned for office expressing strong support for marriage equality and was elected on that basis.

He is in a unusual position that is shared by most state Attorneys General (AG) from time to time. Normally AGs will support both the state's laws and Constitution whenever they are challenged in court. However, their oaths of office specifically require them to follow both the U.S. Constitution, and their state Constitution. Unfortunately, to our knowledge, no oath of office tells AGs what to do if the federal and state Constitutions contradict each other.

Herring has the same opinion as five federal District Court judges in Kentucky, Oklahoma, Texas, Utah and Virginia who have issued rulings on same-sex marriage between late 2013-DEC and late 2014-FEB. All five ruled that the equal protection clause in the 14th Amendment to the U.S. Constitution clearly require that states must not prohibit same-sex couples from marrying simply because of their sexual orientation, just as the 14th Amendment clearly required that states must not prohibit couples from marrying just because they are of different races. This was ultimately decided by the U.S. Supreme Court in 1967 in Loving v. Virginia. That was the decision that legalized interracial marriages across the U.S.

Herring reached the same conclusion as those five judges: the amendment to Virginia's Constitution that banned same-sex marriage violates the federal Constitution and is thus null and unenforceable.

Josh Israel, writing for Think Progress, noted that Mark Herring recently said:

"After a very careful and thorough analysis, I believe Virginia’s ban on marriage between same-sex couples violates the 14th amendment of the United States Constitution. And as Attorney General I cannot and will not defend laws that violate Virginians’ rights. And so instead, the Commonwealth will be siding with the plaintiffs who have brought this case and be siding with every other Virginia couple whose right to marry has been denied. " 4

Israel also wrote:

"Herring’s description of his obligation is also absolutely correct. The oath of office for the Attorney General of Virginia — which Herring took earlier this month — includes a solemn vows first to '... support the constitution of the United States' and second to support '... the constitution of the Commonwealth of Virginia.' Article VI, Clause 2 of the United States Constitution makes clear that the federal constitution takes precedence over state constitutions -- so when the two are in conflict, it is absolutely up to the Attorney General to make that decision. As the person duly elected to make that judgment, Herring, rather than an un-elected lobbyist or state legislators who choose to ignore the federal constitution’s supremacy, is exactly the person tasked by Virginia’s citizenry with determining which laws to defend. 4

Supporting Herring's position is the former Attorney General. Ken Cuccinelli II (R) -- who remains a strong opponent of marriage equality. During a debate in 2009, he said:

"I will not defend what I, in my judgment, deem to be an unconstitutional law. And we don't have the details of the particular law, but there's no guarantee right off the bat that I'm going to defend every single law in Virginia. If I determine it not to be constitutional, I will not defend it. My first obligation is to the Constitution and the people of Virginia." 4

Yet Tony Perkins of the Family Research Council (FRC) and other conservatives continued to criticize AG Herring for upholding the federal Constitution. Perkins said:

"Days after announcing his refusal to carry out his most basic duty -- upholding the state constitution's marriage amendment -- Herring is facing more than criticism.  Thanks to Virginia Delegate Bob Marshall (R), he may also be staring down some weighty repercussions.  This week, Del. Marshall, a good friend to FRC, filed a complaint with the Virginia State Bar over Herring's refusal to enforce the will of 57% of the people.  'Herring has put all of us in the position of Dred Scott, who had no right to counsel in federal court.  An attorney general has a duty to support those laws that are constitutional, and an attorney general has just as strong an obligation and duty to defend laws that he has concluded are unconstitutional...'

Making matters worse, Herring's recklessness may be wreaking havoc on far more than Virginia. New reports suggest that as many as eight state attorneys general are considering similar moves, which would plunge the country into a legal chaos where leaders are bound, not by laws, but liberalism." 8

Bob Marshall sponsored the 2006 amendment to the state Constitution that banned same-sex marriage.

[Dred Scott was a slave who filed a lawsuit to obtain freedom for himself and his wife. The U.S. Supreme Court ruled in 1857 that no African American --whether slave or free -- could be a citizen of the U.S. Thus he had no standing to sue in federal court.]

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2013-JAN-31: Harris v. McDonnell lawsuit proceeds:

The American Civil Liberties Union and Lambda Legal are pursuing a second Virginia SSM lawsuit: Harris v. McDonnell, in Harrisonburg, VA.

The ACLU states on their web site:

"In the complaint, the [four] plaintiffs allege that through the Commonwealth's constitutional and statutory marriage bans and through Defendants' enforcement of them, the Commonwealth and Defendants send a purposeful message that they view lesbians, gay men, and their children as second-class citizens who are undeserving of the legal sanction, respect, protections, and support that heterosexuals and their families are able to enjoy through marriage."

Federal District Judge Michael Urbanski certified that case as a class action on behalf of the estimated 15,000 same-sex couples in Virginia who might want to marry in the future. 5,6

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This topic continues in the next essay

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. David Demirbilek, "Southern Poverty Law Center repeats 'hate group' claim about Family Research Council," Daily Caller, 2012-SEP-13, at:
  2. Paul Steinhauser & Halimah Abdullah, "Virginia attorney general: state's same-sex marriage ban unlawful," CNN, 2014-JAN-23, at:
  3. "Va. AG: Same-sex marriage ban unconstitutional," CBS News, 2014-JAN-23, at:
  4. Josh Israel, "Virginia’s Attorney General’s Decision Not To Defend Marriage Inequality Is Not Unprecedented," Think Progress, 2014-JAN-23, at:
  5. Robert Barnes, "Federal judge pledges quick ruling on Virginia’s same-sex marriage ban," Washington Post, 2014-FEB-04, at:
  6. "Harris, et al. v. McDonnell, et al.," American Civil Liberties Union, 2013-JAN-31, at:
  7. Tony Perkins, "Cheerios tweet exposes left's cereal hypocrisy," Family Research Council, 2014-JAN-31, at:
  8. Tony Perkins, "The Marshall Plan ... on Marriage," Family Research Council, 2014-JAN-28, at:

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How you got here

Site navigation: Home > Homosexuality > Same-sex marriage > Menu > Virginia > here

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Copyright © 2014 by Ontario Consultants on Religious Tolerance
Originally written: 2014-JAN-24
Latest update: 2014-APR-13
Author: B.A. Robinson

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