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Virginia’s Attorney General will not defend state’s gay marriage ban

Virginia’s new Attorney General said Thursday that he will not defend the state’s ban on gay marriage.

“I cannot and will not defend laws that violate Virginians’ rights,” Democratic Attorney General Mark Herring said in an interview with NPR’s Steve Inskeep. “The commonwealth will be siding with the plaintiffs in this case and with every other Virginia couple whose right to marry is being denied.”

The case challenging Virginia’s ban, Bostic v. Rainey, has been touted as a case that will likely be brought before the Supreme Court, forcing the justices to make a decision on statewide gay marriage bans. In June, the high court stopped short of issuing a ruling on statewide bans by dismissing California’s Proposition 8 case.

Herring said the Supreme Court “ultimately will have to decide this issue” and was optimistic that the Court would rule in favor of the plaintiffs. “If confronted to the facts similar to what we have here, [the Court] would find the law unconstitutional,” Herring told NPR.

Virginia is currently one of 33 states to ban gay marriage, 29 of which — including Virginia — have constitutional amendments prohibiting gay marriage. A majority of Virginians voted to include the ban in the state’s constitution in 2006.

Herring, who won the Attorney General’s race by a slim margin in November, said he took the opinion of Virginians into consideration. However, he believed the state needed to stand on “the right side of history.” Referring to the state’s defense of its ban on interracial marriage in Loving v. Virginia, Herring said, “There have been times in some key landmark cases where Virginia was on the wrong side, was on the wrong side of history and on the wrong side of the law.”

Herring voted for the amendment as a member of the Virginia state Senate in 2006. “I saw very soon after that how that hurt a lot of people and it was very painful for a lot of people,” he said. Conversations with his children, he added, also helped change his mind about the issue.

Herring is not the first Attorney General to refuse to defend a state’s ban on gay marriage. Following the Supreme Court’s decision to strike down the federal Defense of Marriage Act, attorneys general in Pennsylvania and New Mexico said they would not defend state laws that prohibited same-sex marriage.

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