NORFOLK, Va. (AP) — In a case that could give gay marriage its first foothold in the old Confederacy, a federal judge will hear arguments Tuesday on whether Virginia's ban on gay marriage should be struck down — the position the state's newly elected Democratic attorney general has endorsed, angering many Republican lawmakers.
In January, Attorney General Mark Herring's office notified the federal court in Norfolk that it would not defend the 2006 voter-approved constitutional amendment in a lawsuit. Republicans have accused Herring of abandoning his responsibility to defend the state's laws. On Tuesday morning, a handful of protesters gathered at the courthouse. They shouted phrases decrying his position and carried signs: "Herring's herring. AG's must uphold the law."
Across the street, gay-marriage supporters — in about equal numbers — shouted their support for the plaintiffs and carried signs saying "Marry who you love."
Newly elected Democratic Gov. Terry McAuliffe has rebuffed calls to appoint outside counsel to defend the ban. On Monday, Republicans in the House passed a bill that would give lawmakers standing in lawsuits where the attorney general and governor have chosen not to participate.
With Herring's office deciding to side with the plaintiffs in the case, the job of defending the law during verbal arguments will fall to the legal team of Norfolk's Circuit Court clerk. In addition, an attorney for the religious group Alliance Defending Freedom will present arguments on behalf of the Prince William County's clerk, which has been allowed to intervene in the case, as to why the law should be upheld.
Herring plans to attend Tuesday's hearing, although Virginia Solicitor General Stuart Raphael will argue in court on behalf of the state.
The lawsuit challenging the ban was filed on behalf of Norfolk couple Timothy Bostic and Tony London, who were denied a marriage license by the Norfolk Circuit Court on July 1. The lawsuit says the state's law denies them liberties that are guaranteed by the 14th Amendment. Since then, Chesterfield County couple Carol Schall and Mary Townley have joined the case. The couple were married in California in 2008 and have a teenage daughter. They want Virginia to recognize their marriage.