Virginia AG Won't Defend Gay Marriage Ban in Court

Mark Herring says the gay marriage ban is unconstitutional.

Attorney General-elect Mark Herring takes part in a Senate vote as Virginia's General Assembly re-convenes following a holiday break at the Virginia State Capitol on Wednesday, Jan. 8, 2014, in Richmond.
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Virginia Attorney General Mark Herring announced Thursday that he will not defend the state's ban on gay marriage and would not fight to retain it in court.

"After a thorough legal review of the matter, Attorney General Herring has concluded that Virginia's current ban is in violation of the U.S. constitution and he will not defend it," spokesman Michael Kelly wrote to The Associated Press.

The decision highlights a major development in the swing state's social agenda, which, just six months ago, was still controlled by the state's Republican Gov. Bob McDonnell and socially conservative Attorney General Ken Cuccinelli, who ran for governor in 2013 and lost to Democrat Terry McAuliffe.

[READ: Utah Gay Marriages Entitled to ‘Every Federal Benefit,’ Holder Says, Despite Legal Limbo]

During his campaign, Herring ran on a platform supporting gay marriage, but he won his office narrowly with 165 votes. His decision not to fight for the gay marriage ban runs counter to what Virginia voters chose in 2006 when they voted to ban gay marriage.

Virginia voted to prohibit gay marriage in 2006 by a margin of 57 percent to 43 percent, but, as in many parts of the country, acceptance of same-sex marriage is on the rise there. The most recent Quinnipiac University survey found that 50 percent of voters in the state supported gay marriage compared with 47 percent who did not.

Herring's decision not to block marriage applications comes after two couples began challenging Virginia's ban on gay marriage. Carol Schall and Mary Townley were married in 2008 in California and are arguing their marriage should be recognized in Virginia, and Timothy Bostic and Tony London filed for a marriage license in Norfolk, Va., in July 2013, but were denied.

In the lawsuit, which is being financed by a group run by Theodore Olson and David Boies, the same team who led the fight against California's gay marriage ban, the couples argue they and their children are being discriminated against under the law.

[ALSO: Utah Won’t Recognize Gay Marriages Following Supreme Court Hold]

"As attorney general, I cannot and will not defend laws that violate Virginians' rights," Herring said in an interview with NPR Thursday. "The commonwealth will be siding with the plaintiffs in this case and with every other Virginia couple whose right to marry is being denied."

Virginia is the latest state to to take action on a gay marriage ban. In Utah and Oklahoma, federal judges ruled bans on gay marriage there unconstitutional. Any of the state cases could reach the Supreme Court, and Herring says he wants his state to be in the mix.

"There have been times in some key landmark cases where Virginia was on the wrong side, was on the wrong side of history and on the wrong side of the law," Herring told NPR. "And as attorney general, I'm going to make sure that the [people] presenting the state's legal position on behalf of the people of Virginia are on the right side of history and on the right side of the law."

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