Recently inaugurated as Attorney General of Virginia, Democrat Mark Herring, who had run on a platform supporting same-sex marriage, was immediately faced with a strategic decision. The Attorney General’s office represents the state’s Registrar of Vital Records, Janet M. Rainey, who is the lead defendant in two federal lawsuits challenging the state’s constitutional and statutory ban on same-sex marriage. One lawsuit, brought by private plaintiffs who are now represented by David Boies and Ted Olson (the prominent appellate lawyers who handled the California Prop 8 challenge), is in the Eastern District of Virginia, and the judge had already scheduled a hearing for January 30, a week from today. The other lawsuit, brought by ACLU and Lambda, is pending in the Western District and is not as far along in terms of a hearing being scheduled. So Herring had to make a quick decision: continue arguing the case along the lines of his predecessor, conservative Republican Ken Cuccinelli, the unsuccessful gubernatorial candidate who was pledged to defend “traditional marriage,” or follow the lead of attorneys general in other states who had refused to defend same-sex marriage bans?
Herring announced this morning that he was following the course set by former California Attorney General Jerry Brown, who had refused to defend Prop 8, and subsequently U.S. Attorney General Eric Holder, who had decided not to defend Section 3 of DOMA. In a “Notice of Change in Legal Position” filed with the Eastern District Court this morning in Bostic v. Rainey by Virginia Solicitor General Stuart A. Raphael, Herring’s senior litigator, the Attorney General’s office took the position that although state law required them to continue enforcing the marriage ban until it is definitively ruled unconstitutional, the office would no longer defend it. Indeed, the Notice is accompanied by a memorandum arguing that the ban is unconstitutional and urging the court to strike it down.
This case is distinguished from the Prop 8 case in an important way, however, because Rainey is not the only defendant. The Norfolk County Clerk is also a defendant, and has separate counsel, and earlier in the lawsuit the Prince William County Clerk, anticipating that the newly-elected A.G. might take this move, had also won the right to intervene, and also has separate counsel. In a press release announcing his move, Herring pointed out that unlike in the Prop 8 case, where the Supreme Court held that the trial court’s decision striking down Prop 8 could not be appealed because none of the defendants with standing to appeal had sought to do so, in this case the defending county clerks would clearly have standing to appeal in case the district court declares the ban unconstitutional.
The memorandum submitted on behalf of the State of Virginia (for, in reality, Herring represents the State and seems to have the full support of Governor Terry McAuliffe) argues that the ban on same-sex marriage violates the 14th Amendment in three different ways. It violates the Due Process Clause by denying a fundamental right, the right to marry, to same-sex couples without any justification sufficient to survive the strict scrutiny that courts apply to deprivations of fundamental rights. Further, the memorandum argues, the ban discriminates on the basis both of sexual orientation and sex. The memorandum makes full use of the recent decisions by Utah District Judge Robert Shelby and Oklahoma District Judge Terence Kern, and prominently cites Supreme Court Justice Antonin Scalia’s assertions, in his dissenting opinions in Lawrence v. Texas and U.S. v. Windsor, that those opinions provide the basis for finding that same-sex couples have a constitutional right to marry.
Herring’s action quickly thrusts Virginia into the forefront of the current battles over same-sex marriage. As marriage equality cases from Nevada (9th Circuit), Utah and Oklahoma (10th Circuit) head to the appellate level, it is possible that the next major trial court decision may come from Virginia after the January 30 hearing. Raphael urged the court to decide the case quickly. “Defendant Rainey has no authority to invalidate or ignore Virginia’s ban on same-sex marriage, even though it conflicts with the Fourteenth Amendment,” he wrote. “In light of Rainey’s obligation to continue enforcing that ban, we urge the Court to adjudicate the merits of this case as rapidly as its fair-minded consideration will permit.”
Postscript added on January 26: Judge Allen responded to the A.G.’s Notice quickly, sending an order to the parties later on Thursday suggesting that a hearing would not be needed and she was ready to rule promptly based on the briefs. However, she gave the parties a brief window of time to suggest any reason why a hearing would be necessary, and gave the counsel for the two county clerks who are defendants (one as an intervenor) a few days to respond to Herring’s Notice.