By Steve Szkotak
RICHMOND — Virginia’s new attorney general has concluded that the state’s ban on gay marriage is unconstitutional and he will join the fight against it — a move that could give same-sex marriage its first foothold in the traditionally conservative U.S. South.
Virginia, widely considered a battleground state in the nationwide fight to grant same-sex couples the right to wed, will now instead side with the plaintiffs who are seeking to have the ban struck down, a spokesman for Attorney General Mark Herring said Thursday in an email to The Associated Press.
There are currently 17 U.S. states that allow gay marriage but most of those states are considered to be fairly liberal and the momentum in more conservative states suggest the tide is shifting across the country in debate over gay marriage.
Virginia’s shift comes on the heels of court rulings in which federal judges struck down gay marriage bans in conservative-leaning Utah and Oklahoma.
Herring, along with Virginia Democratic Gov. Terry McAuliffe, were elected in November as part of a Democratic sweep of the top of the ballot that changed Virginia’s political landscape. Herring succeeded Republican Attorney General Ken Cuccinelli, an activist on social issues such as abortion and gay marriage.
At a news conference later in the day, Herring said he would support gay couples who have filed lawsuits challenging the state’s ban.
“After thorough legal review, I have now concluded that Virginia’s ban on marriage between same sex couples violates the 14th Amendment of the U.S. Constitution on two grounds: marriage is a fundamental right being denied to some Virginians, and the ban unlawfully discriminates on the basis of both sexual orientation and gender,” Herring said.
Herring stressed the same-sex ban will be enforced despite his challenge.
Herring’s decision drew divided responses — celebration from attorneys challenging the ban and condemnation from conservative activists.
Proponents of striking down the state’s ban say the issue resonates in Virginia in particular because of a landmark 1967 U.S. Supreme Court decision involving a Virginia couple and interracial marriage.
Tom Shuttleworth, representing the couples challenging the ban in Norfolk, praised Herring’s position “on the basic human right of being able to marry the person of your choice.”
Lambda Legal, which has challenged the state’s gay marriage ban in federal court in Harrisonburg, called Herring’s decision critical as he is “the keeper of the federal and state constitution in the commonwealth.””
But the conservative Family Foundation of Virginia called the development “disappointing and frightening.”
The Republican speaker of the Virginia House of Delegates said Herring was setting a “dangerous precedent.”
Virginia voters approved the same-sex marriage ban 57 percent to 43 percent in 2006. But a Quinnipiac University poll in July found that 50 percent of registered Virginia voters support same-sex marriage, while 43 percent oppose it. The survey’s margin of error was plus or minus 3.1 percentage points.