Virginia to Join Same-Sex Couples in Asking Federal Court to Strike Down Marshall-Newman Amendment

Virginia Attorney General Mark Herring 9pictured above) has indicated that he will announce today that his office will be joining the plaintiffs in Bostic v. Rainey in requesting the U.S. District Court for the Eastern Virginia to strike down Virginia's gay marriage ban.  It is the right decision under the U.S. Constitution which DOES trump the Virginia Constitution. It goes without saying that The Family Foundation and its puppets in the Republican Party of Virginia will be apoplectic!  I received the news via e-mail from Mark Herring's office which linked to a story in the Washington Post that should be live now.  Here are highlights from the article:

Virginia Attorney General Mark R. Herring will announce Thursday that he believes the state’s ban on same-sex marriage is unconstitutional and that Virginia will join two same-sex couples in asking a federal court to strike it down, according to an official close to the attorney general with knowledge about the decision.

The action will mark a stunning reversal in the state’s legal position on same-sex marriage and is a result of November elections in which Democrats swept the state’s top offices. Herring’s predecessor, Republican Ken Cuccinelli II, adamantly opposes gay marriage and had vowed to defend Virginia’s constitutional amendment banning such unions, which was passed in 2006 with the support of 57 percent of voters.

[O]n Thursday he will file a supportive brief in a lawsuit in Norfolk that challenges the state’s ban, said two people familiar with his plans.

Herring will say that Virginia has been on the “wrong side” of landmark legal battles involving school desegregation, interracial marriage and single-sex education at the Virginia Military Institute, one official said. He will make the case that the commonwealth should be on the “right side of the law and history” in the battle over same-sex marriage.

He has not informed Republicans in Richmond about his plans; an uproar is likely. GOP lawmakers have worried that Herring would change the state’s position — such decisions are up to the attorney general — and have contemplated legislation that would allow them to defend the law in court.

The move in Virginia is part of a quickly changing legal landscape reshaped by the Supreme Court’s rulings in two cases on same-sex marriage in June.

[F]ederal judges in Utah and Oklahoma have said that the reasoning used by the court majority [in United States v. Windsor]  meant that constitutional amendments in those states banning same-sex unions cannot stand. Gay marriages took place in Utah, but both decisions are now stayed pending appeal.

The highest courts in New Jersey and New Mexico have held that gay couples have the right to be married there. The District of Columbia and 17 states — including Maryland but not counting Utah and Oklahoma — now allow such unions.

U.S. District Judge Arenda L. Wright Allen has scheduled oral arguments for Jan. 30 in the Norfolk case. It received a jolt of attention last fall when lawyers Theodore B. Olson and David Boies, who brought the federal challenge of Proposition 8, announced that they were joining the plaintiffs’ side.

In addition, the American Civil Liberties Union is challenging the Virginia ban in a federal suit in Harrisonburg. That case is not as far along.

Virginia has been a particularly appealing place for a challenge by supporters of gay rights because of the Supreme Court’s 1967 decision in Loving v. Virginia, which struck down laws against interracial marriage. Those who support same-sex unions often draw a parallel.

Herring will make the same point, according to a person who has seen the brief he will file. The state will say that Loving upheld the fundamental right to marriage, not the right to interracial marriage. The question at stake now, the brief states, is not a right to same-sex marriage but whether the fundamental right to marriage can be denied to “loving couples based solely on their sexual orientation.”

Expect the Virginia GOP and The Family Foundation to react with sheets of flying spittle and theatrics suggesting that the sky is falling!