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Marc Herring

Next stop, Virginia

More lawsuits coming on same sex marriage.

RedEquality

Almost overnight, Virginia has emerged as a critical state in the nationwide fight to grant gay men and women the right to wed.

This purple state was once perceived as unfriendly and even bordering on hostile to gay rights. That’s changed after a seismic political shift in the top three elected offices, from conservative Republicans to liberal Democrats who support gay marriage.

Two federal lawsuits challenging the state’s constitutional ban on gay marriage are moving forward, and a hearing on one of the cases is scheduled for Jan. 30.

Along with the recent court rulings in which federal judges struck down gay marriage bans in Utah and Oklahoma, gay rights advocates are heartened by the new mood in Virginia.

[…]

One lawsuit, filed in U.S. District Court in Harrisonburg, involves two couples from the Shenandoah Valley who claim the state’s ban on gay marriage violates the Constitution’s equal protection and due process clauses. The American Civil Liberties Union and Lambda Legal are representing the plaintiffs.

Camilla Taylor, marriage project director for Lambda Legal, said Virginia’s “intriguing” history on marriage rights played a role in filing the challenge here. A 1967 Supreme Court decision involving a Virginia couple invalidated laws on miscegenation, or interracial marriage.

The case involved Mildred and Richard Loving. The interracial couple had been living in Virginia when police raided their home in 1958 and charged them with violating the state’s Racial Integrity law. They had been married in Washington, D.C.

The Lovings were convicted before ultimately prevailing before the Supreme Court.

“The narrative in Virginia of how marriage plays into Virginia history, why the state was so important nationally for our struggle, is a very significant one,” Taylor said.

The other lawsuit was filed in U.S. District Court in Norfolk on similar constitutional claims. The legal costs in that case are being paid for by the American Foundation for Equal Rights, which was behind the effort to overturn California’s gay marriage ban.

David Boies and Theodore B. Olson, the high-profile legal tandem that brought down California’s prohibition on same-sex marriage, lead the legal team in that challenge. Both cited Virginia’s history when they announced their challenge.

Olson also cited Loving v. Virginia in his comments on the case. These lawsuits take place against a backdrop not just of recent wins in court in Utah and Oklahoma, but also of the Democratic sweep in the November 2013 elections. New Attorney General Marc Herring was vocal on the campaign trail in his support of marriage equality, and the job of defending Virginia’s laws now fall to him. That’ll be one thing to watch. As has been the case nationally, opinions towards marriage equality have shifted considerably in Virginia, with a majority now in support. Texas will be up next after Virginia, so the news isn’t going to stop or even slow down any time soon.

Federal judge denies Abbott motion to consolidate same sex marriage lawsuits

From Lone Star Q:

RedEquality

A key hearing in a federal lawsuit challenging Texas’ same-sex marriage bans will go forward next month in San Antonio.

U.S. District Judge Orlando L. Garcia, of the Western District of Texas, on Wednesday rejected Texas Attorney General Greg Abbott’s latest effort to transfer the lawsuit from San Antonio to Austin.

Garcia cited key differences between the San Antonio lawsuit, known as DeLeon v. Perry, and two other lawsuits challenging the marriage bans that are pending before U.S. District Judge Sam Sparks in Austin. Garcia’s decision to deny Abbott’s motion means a hearing in DeLeon v. Perry will take place as scheduled in February.

“The Court finds that while both lawsuits filed in the Austin court share a common issue with the present lawsuit in that all Plaintiffs challenge he constitutionality of Defendants’ refusal to let them marry their same-sex partners, the three lawsuits differ in important respects,” Garcia wrote.

That hearing will be on February 12. Previously, Abbott had petitioned Judge Sparks to consolidate the lawsuits, which do have some key differences, but Judge Sparks denied the request. Neel McLane, the attorney for the San Antonio plaintiffs, thinks Abbott has been forum shopping.

U.S. District Judge Orlando L. Garcia, who presides over the Western District of Texas’ San Antonio district, is a President Bill Clinton appointee. Garcia also happens to be the brother-in-law of Sen. Leticia Van de Putte, a Democrat and marriage-equality supporter who’s running for lieutenant governor in 2014. Legal experts say they believe there’s a good chance Garcia will rule in favor of marriage equality in DeLeon v. Perry, a lawsuit filed in his court in October alleging Texas’ marriage bans are unconstitutional.

[…]

Lane said Abbott’s office wants the cases before Sparks, who gave preliminary indications at [a hearing on January 9] that it won’t be easy to convince him to strike down the state’s marriage amendment.

“He [Sparks] did suggest it was going to be a difficult showing to make,” Lane said.

Of course, from there it would be appealed to the Fifth Circuit, where good things go to die. But it would still be a big step forward.

The state of Texas is sure to fight this every step of the way. At least, that would be the case as long as there is a fanatical enemy of marriage equality infesting the Attorney General’s office. If a proponent of marriage equality were to be elected, we might see what Virginia is seeing, where its newly-elected AG is declining to defend that state’s ban on same sex marriage.

Virginia’s new attorney general has decided to switch sides in an important case that is challenging the state’s constitutional ban on gay marriage.

In an interview with Morning Edition’s Steve Inskeep, Democrat Mark Herring said his office will no longer defend the state’s ban on same-sex marriages.

“As attorney general, I cannot and will not defend laws that violate Virginians’ rights,” Herring said. “The commonwealth will be siding with the plaintiffs in this case and with every other Virginia couple whose right to marry is being denied.”

Herring was sworn in just days ago after a razor-thin win in November, an election that marked big political change in the state and also ushered in Democrat Terry McAuliffe to the governor’s mansion. Herring is taking over for Ken Cuccinelli, a Republican who ran and lost a bid for governor on a Tea Party platform and was a staunch defender of the gay-marriage ban.

Herring said as he came into office, he asked his staff to review Bostic v. Rainey and, after careful consideration, he came to the conclusion that the ban violates the Equal Protection Clause of the 14th Amendment of the Constitution.

[…]

Herring’s solicitor general will tell a federal judge in Norfolk next week that Virginia is joining the plaintiffs in the case, that the state agrees a ban on gay marriage denies some couples in the state what the Supreme Court has called a fundamental right.

Herring said he’s doing it for Virginians. That’s when Steve reminded him that the amendment to Virginia’s Constitution defining marriage as only between a man and woman was approved by 57 percent of voters in 2006.

Herring said that his job is to defend laws that are constitutional. This one, he said, isn’t. Also, Herring added, he wants his state to be on the right side of history.

“There have been times in some key landmark cases where Virginia was on the wrong side, was on the wrong side of history and on the wrong side of the law,” Herring said. “And as attorney general, I’m going to make sure that the [people] presenting the state’s legal position on behalf of the people of Virginia are on the right side of history and on the right side of the law.”

Consider that a reason to vote for Sam Houston, if you needed one. Herring is not the first AG to reach this conclusion.

It is not the first time an attorney general has decided to stop defending their state’s gay marriage ban. In Pennsylvania, Attorney General Kathleen Kane said last year that she would stop defending that state’s gay marriage ban, also calling it unconstitutional. An outside law firm was hired to represent the state in a lawsuit over the ban.

And before that, the state of California declined to defend Prop 8, and the federal government declined to defend DOMA. It’s one thing to be dealt a losing hand, it’s another to be dealt a hand you don’t believe should be played at all. The fall of DOMA, the recent court rulings, and the massive shift in public opinion give plenty of cover for these decisions. And as Dave Weigel points out, it’s not like this is a bedrock principle that’s at stake here.

Virginia’s constitutional definition of marriage is not some sacred script handed down from Thomas Jefferson to Patrick Henry to (still sounds weird) Terry McAuliffe. It’s actually younger than the iPod. In 2006, 57 percent of Virginia voters approved the Marshall-Newman Amendment, adding the definition to their Constitution. Since then, lots of Virginians have, like Herring, changed their minds. As of six months ago, only 43 percent of Virginians opposed gay marriage — a 14-point swing.

So Virginia’s one of those states that’s probably ready to wave in gay marriages, but can’t, because an older and more conservative electorate locked and bolted the door. Back in 2006, this was seen as a boon for Republicans. And now it’s left Republicans defending a pretty unpopular position.

Texas passed its amendment in 2005, still years after the iPod hit the scene, though our history of banning gay marriage does go back to the pre-iPod era. The point about locking it in via the Constitution, which I’ve made before, is why this will need to be resolved by the courts. Daily Kos has more.