Virginia Abandons Same-Sex Marriage Opposition

This time, the Commonwealth of Virginia is trying to get it right.  Perhaps tired of seeing his state being on the wrong side of history, Virginia Attorney General Mark Herring announced a stunning about face that is quite rare in the law: Virginia will not only drop its opposition to litigants seeking to overturn Virginia's constitutional ban on same-sex marriage, it has joined forces with the challenging litigants.

Constitutional scholars will recognize the significance of Virginia's about face.  The Commonwealth has lost a series of landmark civil rights cases over the past half-century.

For example, in the wake of the landmark 1954 decision in Brown v Board of Education, desegregating all public schools, the Commonwealth responded first, by refusing to comply with the decision, then taking the unusual step of closing their public schools from 1959 to 1964, until the SCOTUS righted the ship in Griffin v Prince Edward County.  Then in 1967, SCOTUS decided Loving v Virginia striking down the state law prohibiting interracial marriages.

Even in announcing that his office will no longer oppose the pending legal challenge to the Commonwealth's ban on same-sex marriage, AG Herring stated that Virginia would continue to enforce the ban until the federal court rules on the case next week.  The expected outcome in the case, considering United States v Windsor, is that the Commonwealth's ban will be declared unconstitutional.

In announcing the policy reversal, AG Herring applauded the litigants even though as a state legislator, he voted for the ban.  This goes to show how civil rights struggles progress over time and how our constitutional jurisprudence continues to evolve.

02/14/2014 Post Script:  Now it's official.  Federal Judge rules in a strongly-worded opinion that Virginia's ban on same-sex marriage is unconstitutional.

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