Virginia's Ban On Gay Marriage Is Struck Down

U.S. District Judge Arenda L. Wright Allen has ruled Virginia's same-sex marriage ban is unconstitutional. Steve Inskeep talks to Mark Herring, Virginia's attorney general, about the ruling.

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STEVE INSKEEP, HOST:

Last night a federal judge threw out the ban on gay marriage in Virginia. Judge Arenda L. Wright Allen ruled that four plaintiffs - two men, two women - should have the right to marry. It's a strongly worded ruling. The judge says marriage is a fundamental right. The plaintiffs seek to exercise that right and, she says, tradition alone cannot justify denying their rights. The judge even quotes Abraham Lincoln on fairness.

One person involved in this case was Attorney General Mark Herring of Virginia, who turned his office against that ban after he was recently elected. He's on the line. Attorney General, welcome back to the program.

ATTORNEY GENERAL MARK HERRING: Well, good morning. Thank you for inviting me.

INSKEEP: What's this ruling mean?

ALICE FORDHAM, BYLINE: Well, it's really a decision that's a victory for the Constitution and for treating everyone equally under the law. It's the latest step in a journey toward equality for all Virginians, no matter who they are or whom they love, and Judge Wright Allen's eloquent decision is one step in what I suspect will be a continuing and extended legal process to definitively answer the questions in this case. The judge also issued a stay of her ruling pending those appeals. So the law is going to continue to be enforced as it has been, but it's an important step toward equality in Virginia.

INSKEEP: Oh, meaning that if Virginians woke up this morning to this news and wanted to rush out and get married, they could not do that.

HERRING: That's correct. The ban will remain in effect pending the appeals. And so we expect that the legal process will continue.

INSKEEP: You mentioned an extended process - this is going to go on. And we should mention there have been other states where bans on gay marriage have been challenged or overturned. And it's expected at some point that one or more of these cases may make it to the Supreme Court.

In that context, I want to ask about the judge's ruling here. I've been reading it, Attorney General. And it seems - I think this is fair to say, a self-consciously historic ruling. She quotes from Abraham Lincoln, as well as from more traditional legal sources. She even quotes from the plaintiff in the famous Loving versus Virginia case, which outlawed bans on interracial marriage. What do you make of that?

HERRING: Well, I think the judge recognized that the legal landscape on this issue has been moving. And that ultimately the courts, presumably the Supreme Court, will need to make a definitive ruling and this was an important step toward that. And I think she is putting the decision and the case in that historical context. And I think that's one that we also try to do in our brief, in explaining to the public why it was important for Virginia to change its legal position in the case.

We, in Virginia, are really proud of our heritage and the things that some of our forefathers have done to advance liberty and freedom, like Thomas Jefferson, author of the Declaration of Independence, Madison and others. But at times, Virginia's leaders have stood in the way of its citizens moving forward on important civil rights issues.

In cases like Brown versus Board of Education, Virginia was on the wrong side on desegregation. In the Loving case, which you mentioned, again, Virginia was on the wrong side arguing in favor of a ban on interracial marriage. And then also in the United States versus Virginia when he came to admitting female cadets to the Virginia Military Institute, a state college and university.

So it was important, I think, when you put it in historical context that this case is a landmark ruling.

INSKEEP: One other thing, Attorney General. When he last spoke on this program a few weeks ago and announced that you were going to change your office's side on this case, we discussed whether it was a candidate to go to the Supreme Court, because lawyers look for particular kinds of test cases. You listed some elements that suggested maybe it could be a case that would go to the Supreme Court.

Now that you've seen the judge's ruling, do you still think it's a good candidate for that?

HERRING: Well, my primary focus has been on doing what's right under the law and what's right for Virginia and fulfilling my responsibilities as attorney general.

INSKEEP: But you're a lawyer, and here we are with this ruling. Does it look like it could go further?

HERRING: I am. And this might be one that moves up to the Supreme Court. It might be cases like the one in Utah or Oklahoma or maybe several cases. But there are some elements I think make it significant. You've got a lot of this - the legal issues that tie together in this case. One, can the state lawfully refused to issue marriage licenses to gay or lesbian citizens? You also have another couple who were married in California, now have moved to Virginia, would like to have Virginia recognized it, and they also have a child. So a lot of those issues coupled with Virginia's history with the Loving case, from a legal standpoint, I think all of the elements are there where important decisions and rulings and need to be made.

INSKEEP: Attorney General Mike Herring of Virginia, thank you very much, sir.

HERRING: Thank you.

INSKEEP: You heard him right here on MORNING EDITION from NPR News.

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