Mark Herring Releases Major Opinion on LGBT Rights

Herring with me in our home in October 2013

Just last Friday at a fundraiser in Norfolk I was again thinking how glad I was that Mark Herring had been elected Virginia Attorney General rather than his ultra-right wing opponent, Mark Obenshain.  Now, with Herring's release of a nineteen page Attorney General Opinion  in response to inquiries by three members of the Virginia General Assembly, I find myself even more glad and happy to be able to call Herring  a friend (we plan to host one or more events for Herring next year as he runs for re-election).  Equality Virginia sums up the opinion as follows:

AG Herring's opinion (which can be read here) had two major conclusions:

1. As long as the federal courts and agencies consider sex discrimination to include sexual orientation and gender identity, then so does our own Virginia Human Rights Act.
2. For other anti-discrimination measures in Virginia, then the federal courts and agency opinions could potentially allow a Virginia court to expand sex discrimination protections to include sexual orientation and gender identity for the same reason.

Again. this opinion was in response to questions raised by three few members of the Virginia House of Delegates and Senate that wished to clarify the impact of recent federal decisions.  As noted when I saw the news, heads must be exploding at The Family Foundation ("TFF") where stigmatizing and discrimination against LGBT Virginians and forcing hate and fear filled right wing Christian beliefs on all citizens are top priorities.  A piece in the Washington Post also looks at the release of the opinion.  Here are highlights (note the sour grapes voiced by TFF's Victoria Cobb, one of the most vicious and insincere individuals in Virginia, in my view): 

Virginia Attorney General Mark R. Herring said Tuesday that courts would probably rule that discrimination on the basis of sexual orientation or gender identity violates state law.

The opinion, which came in response to a request by a conservative lawmaker and not as a reaction to a specific case, follows the increasing recognition by courts and federal agencies that sex discrimination laws protect gay and transgender people, LGBT advocates say.

Herring (D) said several times in his 19-page opinion that it would be “premature” for him to “categorically” say whether sex discrimination includes bias on the basis of sexual orientation and gender identity.

But, he wrote, “the unmistakable trend in federal courts is towards construing anti-discrimination statues to prohibit discrimination against LGBT individuals in many circumstances.”

That uncertainty “amounts to an invitation” to test state law in the courts, said Claire Guthrie Gastañaga, executive director of the American Civil Liberties Union of Virginia. “And it’s an invitation we’d certainly like to accept,” she said, although she did not specify a particular case.

Herring’s opinion comes as the issue of transgender rights is debated around the country. The U.S. Justice Department and North Carolina have filed dueling lawsuits over the state’s “bathroom bill,” which has sparked protests and boycotts.

Last month, the U.S. Court of Appeals for the 4th Circuit in Richmond backed high school junior Gavin Grimm of Gloucester, Va., in deferring to the U.S. Education Department’s position that transgender students should have access to the bathrooms of the gender with which they identify.

Now Herring is weighing in with an opinion that some conservative lawmakers and groups have criticized as an attempt to interpret state law to fit his politics. Herring, who is seeking re-election in 2017, has built a national profile on left-leaning causes, from gay marriage and immigration to environmental policy and gun control.

“The Attorney General is basing his opinion on the opinion of the Obama administration, the opinion of his friends at the ACLU, and his political aspirations,” Victoria Cobb, president of the Family Foundation of Virginia, said in a statement. “What the law actually says clearly doesn’t matter to him.”

The debate illustrates the culture wars playing out in Virginia and around the country. Earlier this year, Gov. Terry McAuliffe (D) vetoed a Republican-backed bill that would have prohibited state agencies from punishing religious organizations that discriminate against same-sex couples.

Del. Kenneth R. Plum (D-Fairfax), who also requested Herring’s advice on “sex discrimination” and the law, praised the opinion as a historic first that separates Virginia from North Carolina and Mississippi, which recently passed a law allowing businesses to refuse service to gay people.

“We haven’t reached the period at the end of the sentence yet,” Plum said. “But this puts Virginia on the right side of the definition of human rights.”

Mark Herring is proof that elections matter and that those who support equality and modern progress cannot stay home and allow retrograde  Republicans and Christofascist extremists like Cobb and her fellow hate merchants s drag Virginia backwards in time.