Va. AG: Same-sex marriage ban unconstitutional

RICHMOND, Va. -- Virginia's attorney general has officially joined a lawsuit challenging the state's 2006 ban on gay marriage.

Attorney General Mark R. Herring argues in a brief filed Thursday in federal court that the state's prohibition on same-sex marriage is unconstitutional. He calls marriage a fundamental right and the ban discriminatory.

The brief was filed in U.S. District Court in Norfolk, where two couples are taking on the ban.

A hearing is scheduled for Jan. 30 before a judge who was nominated by President Barack Obama.

Herring's decision marks a seismic political shift in Virginia, a battleground state in the national fight to grant same-sex couples the right to wed. It comes less than two weeks after he took office in an historic Democratic sweep of the state's top political offices. Herring campaigned in part on marriage equality.

In an email to CBS News, Herring spokesman Michael Kelly wrote: "While Virginia has a storied place in the founding of our nation and has contributed to the development of our democracy, it has also been on the wrong side of court cases involving school desegregation, interracial marriage, and state-supported single-sex education. (Herring) will say today 'It's time for Virginia to be on the right side of the law, and the right side of history.'"

The state's shift comes on the heels of court rulings in which federal judges struck down gay marriage bans in Utah and Oklahoma.

The lawsuits in Virginia say the state's ban violates the Constitution's equal protection and due process clauses.

The decision by Herring drew divided responses - celebration from attorneys challenging the ban and condemnation from conservative activists.

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."

"It's a nice day to be an American from Virginia," he wrote in an email.

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."

"The attorney general has a constitutional and statutory obligation to enforce and defend the duly adopted laws and Constitution of Virginia," William J. Howell said in a statement. "This is not an obligation that can be taken lightly."

Herring's announcement comes two weeks after Democrats who swept the top of the November ballot took office, changing the state's political landscape.

With the election of Democrats Terry McAuliffe as governor and Herring as attorney general, Virginia made a hairpin turn away from the socially conservative officeholders they succeeded, particularly Republican Attorney General Ken Cuccinelli, an activist on social issues such as abortion and gay marriage. McAuliffe issued an executive order on inauguration day prohibiting discrimination against state employees who are gay.

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.

It is not the first time an attorney general has decided to stop defending their state's gay marriage ban. In Pennsylvania, Attorney General Kathleen Kane said last year that she would stop defending that state's gay marriage ban, also calling it unconstitutional. An outside law firm was hired to represent the state in a lawsuit over the ban.

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.

Mildred and Richard Loving had been married in Washington, D.C., and were living in Virginia when police raided their home in 1958 and charged them with violating the state's Racial Integrity law. They were convicted but prevailed before the Supreme Court.

The legal costs in the Norfolk case are being paid for by the American Foundation for Equal Rights, which was behind the effort to overturn California's gay marriage ban.

David Boies and Theodore B. Olson, the high-profile legal tandem that brought down California's prohibition on same-sex marriage, lead the legal team in that challenge. Both cited Virginia's history when they announced their challenge.

"This case is about state laws that violate personal freedoms, are unnecessary government intrusions, and cause serious harm to loving gay and lesbian couples," Olson had said.

The Norfolk lawsuit's plaintiffs are two couples: Timothy Bostic and Tony London, and Carol Schall and Mary Townley. Bostic and London applied for a marriage license with the Norfolk Circuit Court Clerk's office in July 2013, but their application was denied.

Schall and Townley were legally married in California in 2008. They have a daughter, whom Townley gave birth to in 1998, but Schall can't adopt her because Virginia law doesn't allow same-sex couples to adopt children, according to the lawsuit.

The lawsuit argues that Virginia law stigmatizes gay men and lesbians, along with their children and families, because it denies them the same definition of marriage afforded to opposite-sex couples.

In that state General Assembly, Democratic legislators are still widely outnumbered in the House of Delegates, but they have been emboldened by the shift away from a reliably conservative state. They took immediate aim at the state's ban on gay marriage, but proposed constitutional amendments face a long road. The earliest voters could see a proposed amendment is in 2016.

There are currently 17 states that allow gay marriage.