Virginia's New Attorney General Will Not Defend Gay-Marriage Ban : The Two-Way In an interview with NPR, Mark Herring says he wants the state to be on the "right side of history." The Democrat said his solicitor general will tell a federal judge that Virginia is switching sides in a case that has potential to reach the U.S. Supreme Court.
NPR logo

Virginia's New Attorney General Will Not Defend Gay-Marriage Ban

  • Download
  • <iframe src="" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
  • Transcript
Virginia's New Attorney General Will Not Defend Gay-Marriage Ban

Virginia's New Attorney General Will Not Defend Gay-Marriage Ban

  • Download
  • <iframe src="" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
  • Transcript


It's MORNING EDITION, from NPR News. I'm Steve Inskeep.


And I'm Renee Montagne. Here's a look at the next step in the fight over same-sex marriage. That fight is accelerating in states where it's still banned.

INSKEEP: Last year, the Supreme Court struck down a federal marriage law and California's gay marriage ban. The court did not rule on bans in dozens of other states, leaving gay marriage advocates to press additional lawsuits.

MONTAGNE: Today, they have a new ally. Virginia Attorney General Mark Herring tells NPR his office is switching sides. He will support the lawsuit to overturn his own state's gay marriage ban.

MARK HERRING: 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. And as attorney general, I'm going to make sure that the person 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 the law.

INSKEEP: Virginia's history includes a famous Supreme Court case known as Loving vs. Virginia. The high court struck down a ban on interracial marriage. Now that the issue is same-sex marriage, advocates have lined up high-profile lawyers for two Virginia couples who sued for the right to marry.

The previous attorney general - who's Republican - defended Virginia's law. Then Democrat Mark Herring won a very narrow election last year, by 907 votes. He tells us that today, he's moving from the defendant's side of the argument to that of the plaintiff's.

HERRING: After a very careful and thorough analysis, I believe Virginia's ban on marriage between same-sex couples violates the 14th Amendment of the United States Constitution. And as attorney general, I cannot and will not defend laws that violate Virginians' rights. And so instead, the Commonwealth will be siding with the plaintiffs who have brought this case, and be siding with every other Virginia couple whose right to marry is being denied.

INSKEEP: I want to make sure that I'm clear on what's happening here, because it is a little unusual. You are the attorney general of the state of Virginia. Ordinarily, you or the lawyers working for you would defend state laws when they're challenged in court. But in this case, you're going over to the other side, and you will argue to change state law. You will argue to overturn state law, in fact.

HERRING: That's right. And an attorney general has a duty to support those laws that are constitutional and validly adopted and - whether I agree with the policies behind them or not. And an attorney general also has just as strong a duty to not defend laws that he has concluded - after a careful and thorough analysis - that are unconstitutional. And it's that simple. Just less than two weeks ago, I took an oath to uphold both the Virginia and United States Constitutions. Beyond my duty to uphold the Constitution, and to represent state agencies and agency heads, I also answer first to another client. It's the people of Virginia. And that's what I have pledged over and over to do, is to put the law and put Virginians first.

INSKEEP: Although you mentioned the people of Virginia, and that adds some more complexity here. Because if I'm not mistaken, this is part of Virginia's constitution because the people of Virginia explicitly voted on it not so many years ago, and in fact, you were in favor of having them vote on it. Are you at risk of here of going against a substantial portion of the people of Virginia - possibly even a majority, depending on who you'd ask.

HERRING: Well, that's one aspect that I thought very carefully about, but it's about what the law requires here. And, you know, we have concluded - I have concluded that the law is unconstitutional. And I think the Supreme Court - which ultimately will have to decide this issue - if confronted with the facts similar to what we have here, would find the law unconstitutional.

INSKEEP: Do you see this as a case that could go to the Supreme Court and lead to the overturning - if your side wins - of all state bans on gay marriage?

HERRING: Well, ultimately, the Supreme Court is going to have to be the one to decide this issue. Whether this is the case that's going to do it or not, I don't know. My focus is on my responsibilities as attorney general in Virginia, and making sure that the rights of Virginians are protected and vindicated.

INSKEEP: I understand why you need to say that, but I'm just wondering what you would think if your action ends up contributing to the nationwide overturning of same-sex marriage bans.

HERRING: Well, I think, for me, what's important is doing what's right. And we'll have to wait and see how the courts play out. There's certainly facets to the case which I think are of interest. Certainly, the stories of the couples involved in the case bring the issues that I think will need to be decided, front and center. I think Virginia's history is one that is important in advancing democracy and freedom, and being the home of one of our first freedoms - religious freedom; but that on some key landmark decisions - including one, the Loving case, which enunciated the right to marry. And it's instructive that in that case, the court didn't say that there was a right to interracial marriage. It said that everyone - all individuals - have the right to marry. And all individuals means all individuals.

INSKEEP: When you say the biographies of the people involved, you're saying that the plaintiffs here, by all appearances, seem to be upstanding citizens: an English professor, a real estate person, someone who works with people with autism. We're talking about people that could stand before the country and effectively, become symbols of this effort.

HERRING: I think the plaintiffs in this case have been loving and committed couples for a long time - I think 25 years. One is a Virginia couple. The other, Carol Schall and Mary Townley, live in the Richmond area. Their relationship of three decades was formalized in 2008 by a marriage in the state of California, and together they have a 15-year-old daughter. So, I think in that sense, they bring together a lot of the legal issues that, you know, courts are grappling with right now.

INSKEEP: How much of a personal journey has this been for you, attorney general?

HERRING: Well, you mentioned earlier - I had voted against marriage equality eight years ago, back in 2006, even though at the time, I was speaking out against discrimination and ways to end discrimination. And I was wrong for not applying it to marriage. I saw very soon after that how that hurt a lot of people, and it was very painful for a lot of people. After that, I talked to a lot of people - constituents I represented as a state senator, co-workers, my family, including my children - and I've come to see the issue very differently now.

INSKEEP: You said your children. What did your children tell you?

HERRING: Well, I think they were instructive about the relationships that people have. And they were helpful in getting me to see a different perspective.

INSKEEP: How did they phrase that? Come on, Dad - what did they say?

HERRING: You know, they pressed me for the position I had taken and made me continue to question it. And I just came to the conclusion that it was the right thing to do.

HERRING: Mark Herring is the new attorney general of Virginia. He's announcing today that his office is switching sides in a challenge to Virginia's ban on gay marriage.

Copyright © 2014 NPR. All rights reserved. Visit our website terms of use and permissions pages at for further information.

NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.