A federal judge was set to hear arguments Tuesday as to whether Virginia’s ban on gay marriage should be struck down, which is the position the state’s newly elected Democratic attorney general has already endorsed in a move that has angered many Republican lawmakers.
In January, Attorney General Mark Herring’s office notified the federal court in Norfolk that it would not defend the 2006 voter-approved constitutional amendment from a lawsuit. Republicans have accused Herring of abandoning his responsibility to defend the state’s laws. On Monday, Republicans in the House passed a bill that would give lawmakers standing in lawsuits where the attorney general and governor have chosen not to participate. Newly elected Democratic Gov. Terry McAuliffe has rebuffed calls to appoint outside counsel to defend the ban.
With the Attorney General’s Office deciding to side with the plaintiffs in the case, the job of defending the law during verbal arguments will fall to the legal team of Norfolk’s Circuit Court clerk. The religious group Alliance Defending Freedom will also have an attorney presenting verbal arguments on behalf of Prince William County’s clerk, which has been allowed to intervene in the case, as to why the law should be upheld.
Herring plans to attend Tuesday’s hearing, although Virginia Solicitor General Stuart Raphael will argue in court on behalf of the state.
The lawsuit challenging the ban was filed on behalf of Norfolk couple Timothy Bostic and Tony London, who were denied a marriage license by the Norfolk Circuit Court on July 1. The lawsuit says the state’s law denies them liberties that are guaranteed by the 14th Amendment. Since then, Chesterfield County couple Carol Schall and Mary Townley, have joined the case. The couple was married in California in 2008 and have a teenage daughter. They want Virginia to recognize their marriage.
The attorneys representing the plaintiffs on behalf of the American Foundation for Equal rights are the same ones that successfully challenged California’s ban on gay marriage in court there.
After Herring’s office decided not to defend the law, U.S. District Judge Arenda L. Wright Allen considered not even hearing verbal arguments in the case because of the ‘compelling’ filing by the attorney general’s office. Wright Allen is a former public defender and assistant U.S. attorney who was appointed to the post by President Barack Obama.
The lawsuit was filed shortly after the U.S. Supreme Court struck down the section of the federal Defense of Marriage Act that prevented gay couples from receiving a range of federal benefits that are generally available to married people.