Same-sex couple laud AG’s shift

Posted: January 24, 2014

The Winchester Star

Victoria Kidd (left) and Christy Berghoff, of Frederick County, are shown in June. The same-sex couple filed a suit in August challenging the state’s ban on gay marriage. (Photo by Jeff Taylor/The Winchester Star)

WINCHESTER — Virginia Attorney General Mark Herring’s Thursday morning announcement that he wouldn’t defend the commonwealth’s ban on gay marriage in a federal lawsuit was welcomed by two local women who wed in Washington, D.C.

Herring filed a change of legal position in the case of Bostic v. Rainey on Thursday.

In that case, Timothy Bostic and Tony London, a long-term gay couple from Norfolk, are suing former Gov. Bob McDonnell, former Attorney General Ken Cuccinelli, State Registrar of Vital Records Janet Rainey and Norfolk Circuit Court George E. Schaefer III. McDonnell and Cuccinelli were later dismissed from the suit.

Bostic and London are asking the court to declare the state’s same-sex marriage ban unconstitutional and to issue an injunction banning its enforcement.

Two other gay couples, Christy Berghoff and wife Victoria Kidd, who live in Winchester, and Staunton couple Joanne Harris and Jessica Duff filed a similar federal suit in August.

In the Bostic and London case, Herring’s notice states that denying homosexual couples the right to marry is unconstitutional.

“The Attorney General will not defend the constitutionality of those laws, will argue for their being declared unconstitutional, and will work to ensure that both sides of the issue are responsibly and vigorously briefed and argued before the courts to facilitate a decision on the merits, consistent with the rule of law,” the notice says. “Rainey will continue to enforce the provisions of Virginia law at issue until the judicial branch can render a decision in this matter.”

An accompanying memorandum says that if the attorney general decides something in the Virginia Constitution is in violation of the U.S. Constitution, “he is not duty bound to defend it.”

Kidd was ecstatic Thursday.

“It’s a heck of a step,” she said. “To have someone in that high of an office in the state saying the same thing that we’re saying about this being an important and critical right for all committed same-sex couples in Virginia is so unprecedented. It made my day.”

She said her wife was also very excited, sharing the news early Thursday morning on Facebook.

Gay couples still have “a long process” ahead of them, Kidd said.

“But, that’s very encouraging,” she said of the attorney general’s actions. “From our perspective it’s a huge win today.”

The American Civil Liberties Union and the Lambda Legal Defense and Education Fund are representing Kidd, Berghoff, Harris and Duff. Lambda Legal issued a press release Thursday.

It said it’s expected that Herring’s office will file similar documents in the women’s lawsuit.

“Today actions by Virginia’s chief legal officer continues America’s evolution on this issue,” ACLU attorney Amanda Goad, one of the attorneys representing them, says in the release. “More and more Americans are embracing the idea that all loving and committed couples should have access to the protections that only come with marriage.

“With the attorney general on our side, we hope that we can soon count Virginia among the 17 other states where same-sex couples have the freedom to marry.”

Republican leaders were swift in their criticism of Herring’s decision.

“It took Mark Herring less than a month to decide he doesn’t want to be Attorney General,” Republican Party of Virginia Chairman Pat Mullins said in a statement. “The first job of Virginia’s Attorney General is to be the Commonwealth’s law firm, and to defend the duly passed laws of Commonwealth.

“Attorneys don’t get to choose whether or not they will defend their clients... If Mark Herring doesn’t want to defend this case, he should resign, and let the General Assembly appoint someone who will. Mark Herring owes the people of Virginia no less.”

Herring’s opponent in the incredibly tight attorney general’s race this past fall, Sen. Mark Obenshain, R-Rockingham County, also issued a statement critical of his decision.

In it, Obenshain says that Virginia, like other states, is in a “robust debate” regarding gay marriage, and that the state’s own marriage amendment is the subject of “perennial legislative debate.”

“...And, that Amendment could well fall: the voters could repeal it or a court may strike it down,” the statement says. “But it is emphatically not the role of the Attorney General to make that determination unilaterally, and that may well be the consequence of Attorney General Herring’s decision.

“Through this decision, Herring is effectively seeking to unilaterally reverse the actions of the General Assembly in adopting the Amendment, and the people of Virginia in ratifying it.”

Herring says in a statement that there is precedent, albeit infrequent, to his actions.

Cuccinelli decided not to defend the Opportunity Educational Institution in 2013, and 10 years before that Attorney General Jerry Kilgore was among 44 state attorneys general “to argue that an attorney general is properly carrying out his constitutional duties when he seeks to invalidate a State law that he believes, in his independent judgment, to be unconstitutional,” according to the statement.

Also taking issue with Herring was 33rd District Del. Dave LaRock, R-Hamilton. LaRock said Herring was “setting a dangerous precedent.”

“It’s our Attorney General’s job to represent the Commonwealth of Virginia in court, even when it might involve a matter that he disagrees with personally,” LaRock said in a statement. “Herring hasn’t just bypassed the court system to issue his own ruling that Virginia’s Constitution violates the United States Constitution, he’s gone one step further. He’s announced that he’s going to actively work to persuade the federal courts that his personal opinion is valid. This certainly isn’t part of his job description, and it reminds us what happens when we are motivated by politics instead of principle.”

— Contact Sally Voth at svoth@winchesterstar.com