As the same-sex marriage civil rights issue winds its way through our federalist system of governance, there are two distinct paths taken by proponents.  One is where state legislatures promulgate laws allowing same-sex marriages; the other is where state officials capitulate in on-going post-Windsor federal litigation challenging same-sex marriage prohibitions.

Oregon now joins Virginia and Nevada as the latest states no longer willing to defending state constitutional bans on gay marriage in the wake of the SCOTUS Windsor decision.  In 2004, voters in Oregon passed "Measure 36" -a state law banning same-sex marriage- by a 57% margin; two federal lawsuits challenging the constitutionality of Measure 36 were subsequently lodged in federal court and have dispositive motions pending [similar to the recently denied dispositive motions in the DeBoer case grinding onward here in the United States District Court for the Eastern District of Michigan in Detroit].

In one of those lawsuits, Oregon state officials announced their capitulation in a responsive pleading.  The case involves a lesbian couple who were married during the brief interval where Oregon allowed same-sex marriages, prior to the passage of Measure 36.

Two years post-Windsor, we see this civil rights issue picking-up steam.  Significant legal developments occur nearly each week posing a challenge for us here at the Law Blogger to keep up with the pace of the changes.

As always, we will do our best to keep our readers informed.

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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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