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Virginia attorney general files brief against his own state's marriage law

Published: Thursday, Jan. 23 2014 3:40 p.m. MST

Virginia Attorney General-elect Mark Herring smiles during a news conference at the Capitol in Richmond, Va., in this Dec. 18, 2013 file photo. Herring has concluded that the state's ban on gay marriage is unconstitutional and he will no longer defend it in federal lawsuits challenging it, his office said Thursday Jan. 23, 2014.

Steve Helber, Associated Press

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The new Virginia Attorney General Mark Herring has officially intervened in support of a challenge to his state's constitutional provision banning same-sex marriage, arguing that it violates the U.S. Constitution.

Herring spokesman Michael Kelly told CBS news in an email: "While Virginia has a storied place in the founding of our nation and has contributed to the development of our democracy, it has also been on the wrong side of court cases involving school desegregation, interracial marriage, and state-supported single-sex education. (Herring) will say today 'It's time for Virginia to be on the right side of the law, and the right side of history.'"

USA Today notes that "Herring's action is similar to what U.S. Attorney General Eric Holder, with President Obama's backing, did in refusing to defend the Defense of Marriage Act. That law, passed in 1996 and signed by President Bill Clinton, defined marriage for federal purposes as between one man and one woman. As a result, married same-sex couples in states that had legalized the practice were not eligible for federal benefits."

Virginia House Speaker William J. Howell told the Washington Post, “I am very concerned about his announcement today and the dangerous precedent it sets with regard to the rule of law. The attorney general has a constitutional and statutory obligation to enforce and defend the duly adopted laws and Constitution of Virginia. This is not an obligation that can be taken lightly. The attorney general’s decision today demonstrates a great deal of disregard for that obligation, as well as the legislative and democratic processes by which those laws are adopted.”

Herring's move comes after a Democratic sweep of statewide races last fall, in which he won his race narrowly in a recount.

"The move comes following a seismic political shift in Virginia," NBC News noted, "that ushered Democrat Terry McAuliffe into the governor's office and Herring, a Democrat who campaigned in part on marriage equality, as attorney general. Herring's victory was razor thin and was only official after a recount showed he earned 165 more votes than his Republican foe in a race with more than two million votes cast."

Email: eschulzke@desnews.com

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