WASHINGTON — Virginia Attorney General Mark Herring’s office informed a federal judge Thursday that the office now opposes the constitutionality of the state’s amendment banning same-sex couples from marrying — a change of position from the state’s previous attorney general.
The planned change in position was first reported overnight Thursday by The Washington Post’s Robert Barnes, citing an official close to the attorney general. The change was made official in a court filing Thursday in a federal lawsuit challenging the marriage amendment.
“Having exercised his independent constitutional judgment, consistent with his oath of office, the Attorney General has concluded that Virginia’s laws denying the right to marry to same-sex couples violate the Fourteenth Amendment to the United States Constitution,” Stuart Raphael, the new solicitor general of Virginia, wrote in the filing Thursday in Bostic v. Rainey.
The lawsuit, filed shortly after the U.S. Supreme Court’s decisions striking down the Defense of Marriage Act and allowing the invalidation of California’s Proposition 8 marriage amendment, now includes representation by Ted Olson and David Boies — the lawyers behind the Proposition 8 challenge.
The attorney general’s office also noted the state’s history in defending its ban on interracial marriage up to its loss at the Supreme Court in Loving v. Virginia, with Raphael noting:
“‘Those who cannot remember the past are condemned to repeat it.’ George Santayana, The Life of Reason: or the Phases of Human Progress 284 (1920). It is worth observing, therefore, that the arguments raised in Virginia’s brief in Loving to defend Virginia’s ban on interracial marriage are almost identical to the arguments that have been offered to support Virginia’s ban on same-sex marriage,” the attorney general’s office detailed in a memorandum explaining its change in position. “The injustice of Virginia’s position in Loving will not be repeated this time.”
In the case, Herring’s office is representing Janet Rainey, the State Registrar of Vital Records. The office detailed in the filings Thursday that she will continue to enforce the marriage amendment “until the judicial branch renders a decision that conclusively adjudicates the question.” Also named as a defendant in the lawsuit is the clerk of the Circuit Court for the City of Norfolk, George Schaefer III. Finally, the filing notes, the clerk of the Circuit Court of Prince William County, Michèle B. McQuigg, “has been permitted to intervene and will also defend the ban” — “because she anticipated Rainey’s change of position here.”
The focus on these elements suggest that Herring’s office does not believe that the case will end up in a position similar to that faced by Proposition 8, where none of the public officials in the lawsuit sought an appeal. In that case, the officials’ decisions not to appeal led the initiative’s proponents to appeal and then seek Supreme Court review, but the Supreme Court held that they lacked standing, or legal authority, to do so. The standing decision prevented the Supreme Court from making a final constitutional ruling on whether same-sex couples have a constitutional right to marry.