Home GLBT Virginia’s Anti-Gay-Marriage Amendment Unconstitutional; Attorney General Herring Was Right!

Virginia’s Anti-Gay-Marriage Amendment Unconstitutional; Attorney General Herring Was Right!


Looks like Attorney General Herring was right all along, and everyone who said he was wrong were, well, wrong. The bottom line is that the U.S. constitution trumps the state constitution, and under the U.S. constitution we all have to be treated equally under the law and not discriminated against just because a majority feels like it. Why is that such a difficult concept for right wingnuts like Bob Marshall to understand? Here are a few highlights from the ruling, which you can read in full on the “flip.” Enjoy! 🙂

*The plaintiffs are found to have standing. A key reason: the plaintiffs “suffer humiliation and discriminatory treatment on the basis of their sexual orientation,” which opposite-sex couples so not likewise suffer. Furthermore, “This stigmatic harm flows directly from current state law.” Any further questions?

*On legal precedent, the court writes: “doctrinal developments in the question of who among our

citizens are permitted to exercise the right to marry have foreclosed the previously precedential

nature of the summary dismissal in [the Baker v. Nelson decision of 1971]. The Baker summary dismissal is no longer binding.”

*”Marriage is a fundamental right…protected

by both the Due Process and Equal Protection

Clauses of the Fourteenth Amendment.” Isn’t that exactly what Mark Herring said? 🙂

*There is “no dispute” that the Marshall-Newman, anti-gay-marriage amendment, “Plaintiffs and Virginia citizens similar to Plaintiffs are deprived of that right to marry.” That, obviously, is BLATANTLY unconstitutional.

*”Because marriage is a fundamental right, therefore, Virginia’s Marriage Laws cannot be

upheld unless they are justified by compelling state interests and are narrowly drawn to

express only those interests.” #FAIL and #FAIL some more.

*”The state’s compelling interests in protecting and supporting our children are not furthered by a prohibition against same-sex marriage,” just as bans on inter-racial marriage weren’t so furthered. The fact is, “The for-the-children rationale rests upon an unconstitutional, hurtful and unfounded presumption that same-sex couples cannot be good parents.” Utterly and maliciously false.

*Bottom line: the Virginia anti-gay-marriage amendment (and laws) fail under the U.S. Constitution’s 14th amendment and specifically its Equal Protection Clause. As if that’s not enough, “Virginia’s Marriage Laws fail to display a rational relationship to a legitimate purpose, and so must be viewed as constitutionally infirm under even the least onerous level of scrutiny.” The court clearly states that the main reason these anti-gay-marriage laws are in place is anti-gay animus and prejudice. And that’s not sufficient reason to discriminate under the U.S. Constitution, which right wingers like Ken Cuccinelli, E.W. Jackson, Mark Obenshain, Bob Marshall, etc. (falsely) claim to revere so much. Sorry guys, you and your bigotry lose!

P.S. We’re all eagerly awaiting the heartfelt apology to Mark Herring by all the right wingers who slandered him (as well as by everyone who supported discriminating against an entire class of Virginia citizens). Any time now. 🙂


    ~ Following decision striking down Virginia’s ban on marriage for same-sex couples ~

    Richmond– Norfolk federal district court Judge Arenda Wright Allen issued a landmark opinion tonight at 9 p.m. striking down Virginia’s ban on marriage for same-sex couples. Judge Wright Allen found that Virginia’s ban, which was incorporated in 2006 in the Virginia Constitution, violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution.  She  issued a permanent injunction barring Virginia from enforcing the ban but stayed that ruling pending appeal.  Similar rulings striking down same-sex-marriage bans in Utah and Oklahoma have also been stayed pending appeal.

    The 41-page opinion thoroughly evaluated the arguments made for and against the ban.  Agreeing with the Attorney General of Virginia, Judge Wright Allen concluded that “strict scrutiny” applies to laws like Virginia’s ban that interfere with the fundamental right to marry.  She ruled that the arguments offered by the ban’s supporters not only failed such “strict scrutiny,” but lacked even a “rational basis.”  The opinion also agreed with the legal analysis used by federal judges in Utah and Oklahoma to strike down the same-sex-marriage bans in those States.

    The Court directed the parties to submit a proposed final order by no later than March 14.  A prompt appeal is expected to the United States Court of Appeals for the Fourth Circuit.

    Following the issuance of the decision, Attorney General Mark R. Herring issued the following statement:

    “This decision is a victory for the Constitution and for treating everyone equally under the law. It is the latest step in a journey towards equality for all Virginians, no matter who they are or whom they love. But Judge Wright Allen’s eloquent decision is only one step in what I suspect will be an extended legal process to definitively answer the questions raised in this case. When we announced the decision to change Virginia’s legal position in Bostic v. Rainey, I said that the case presented fundamental questions that need to be decided by a court, and may ultimately need to be decided by the Supreme Court. That remains true today. The legal process will continue to play out in the months to come, but this decision shows that Virginia, like America, is coming to a better place in recognizing that every Virginian deserves to be treated equally and fairly.”

  • Governor McAuliffe Statement on Bostic v. Rainey Ruling

    Governor Terry McAuliffe released the following statement on the federal district court’s decision striking down Virginia’s ban on marriage for same-sex couples:

    “I applaud the federal district court’s decision to ensure all Virginians are treated equally under the law, no matter what their backgrounds are or whom they love. In order to grow our economy and attract the best businesses, entrepreneurs, and families to Virginia, we must be open and welcoming to all who call our Commonwealth home.  As this case continues through the judicial process, I will enforce the laws currently on the books, but this decision is a significant step forward in achieving greater equality for all of our citizens.”


  • Quick, somebody call a waaaaaaaaaaaambulance for this bigoted fool.

  • While I fully agree with Charniele Herring on the merits of this, in no way/shape/form should she be sending out emails as “DPVA Chair” when she’s a candidate for the 8th Congressional District Democratic nomination. The deal is, Charniele Herring should have resigned as DPVA Chair IMMEDIATELY after announcing several weeks ago that she’d be a candidate for Congress in a crowded Democratic field, as there’s no way she can remain a neutral, unbiased, serious DPVA Chair while doing so. At the bare minimum, she shouldn’t be allowed to send out emails or other correspondence which refer to her as “DPVA Chair.” Hello DPVA Steering Committee?

    DPVA Chair Herring Statement on Bostic v. Rainey Ruling

    Richmond– DPVA Chair Charniele Herring released the following statement on last night’s news of Norfolk federal district court Judge Arenda Wright Allen issuing a landmark opinion striking down Virginia’s ban on marriage for same-sex couples. Judge Wright Allen issued a permanent injunction barring Virginia from enforcing the ban but stayed that ruling pending appeal.  

    “The U.S. District Court Judge’s decision finding Virginia’s same sex marriage ban unconstitutional moves Virginia a step closer to becoming more inclusive,” said DPVA Chair Charniele Herring. “In her profound words, Judge Wright wrote ‘We the People become more inclusive, and our freedom more perfect.’ We must remain forever vigilant as continue to work for freedom and equality for all Virginians.”

  • House Democratic Caucus Statement on Federal Judge Striking Down Virginia’s Same-sex Marriage Ban

    Richmond, VA – In response to a federal ruling striking down Virginia’s ban on same-sex marriage because it violates the equal protection clause under the 14th Amendment to the United States Constitution, the House Democratic caucus released the following statement:  

    “This is a historic step forward for equality and fairness in Virginia,” said Democratic House Leader David Toscano. “All Virginians deserve the right to marry the person they love, and this decision is significant in moving us toward marriage equality in our nation.”

    Democratic Caucus Chair Mark Sickles added, “This decision is a victory for all Virginians, and we applaud Attorney General Herring for standing up for the Constitution and full equal rights for all our citizens.”

    Democrats have sponsored several bills to repeal the Marshall-Newman Amendment: HB 939-Surovell, HJ 3-Morrissey, HJ 11-Surovell, HJ-67 Plum, and HJ-77-Herring


    WASHINGTON, D.C. – U.S. Senator Tim Kaine released the following statement on the same-sex marriage ruling in Virginia:

    “Happy Valentine’s Day to my beautiful wife Anne and to all Virginians.  It’s a particularly great day in light of the federal court ruling striking down the state prohibition against same-sex marriage.  I campaigned against the ban in 2006 and was very disappointed when it passed.  Today, we celebrate a Virginia for lovers and remember the great Shakesperian wisdom: ‘Let me not to the marriage of true minds admit impediments.'”

  • Lieutenant Governor Northam Applauds Decision to Strike Down Virginia’s Ban on Same Sex Marriage

    Richmond, VA – In response to a federal judge’s decision to strike down Virginia’s 2006 ban on same sex marriage, the Lieutenant Governor released the following statement:

    “I applaud the Court’s decision to strike down Virginia’s ban on same sex marriage and help ensure that all of Virginia’s citizens are treated equally under the law. Marriage is a fundamental and an incredibly personal right of all Virginians, one that government should not interfere with. Unfortunately Virginia has a notorious history of intervening in decisions about whom our citizens can and cannot marry, a history which we must put behind us. This historic decision brings us one step closer to ensuring that all Virginians, regardless of sexual orientation, have equal rights under the law.”

  • calls for judge’s impeachment. Hahahahahaha.


    From Virginia Senate Democratic Caucus Chairman Senator A. Donald McEachin (D-Henrico):

    Last night’s court decision to strike down the same-sex marriage ban was a step in the right direction for fairness, justice and equality for ALL Virginians. We’ll continue to fight to repeal the Marshall-Newman amendment, but the work of the courts can help right this wrong.

    We have more work to do. This year, my Democratic colleagues and I introduced legislation to provide partner benefits for state and municipal employees, fairer and open adoptions, ending the harmful practice of so-called conversion therapy, finally codify employee non-discrimination.

  • Ron

    Her opinion was magestic, legally persuasive, and with appropriate heart and soul (and historic appreciation) for the moment.

    I also think it bears repeating, and bears repeating OFTEN, that the Marshall-Newman Amendment to the Virginia Constitution was in no way ratified by a majority of Virginians. In 2006 when it passed, 1,328,537 voters out of 4,554,683 registered voters approved the amendment — a percentage of 29.17%. Based on 2013 Virginia SBE enrollment figures, there were 5,250,008 registered voters as of the November 2013 elections — so, just over 25% (25.30%) of voters.

    Unconstitutional laws are unconstitutional regardless of the percentage of the plebiscite that endorses them, but these laws have passed with bare pluralities of public support. That some overwhelming segment of the public acceded to these laws is in fact a gross mis-statement of the facts. (North Carolina held their constitutional amendment election in a June 2012 Republican primary to drive up support for it!!!).  

  • DJRippert

    I have very publicly supported the right of any two unrelated adults to get married.  I very publicly opposed Virginia’s idiotic marriage amendment back in 2006.

    However, Judge Allen stayed her ruling pending the outcome of the appellate court.  Did she do this because she is anti-gay?  Of course not.  She did it because she respects the legal system.

    Mark Herring is a member of the executive branch of government, not the judicial branch.  Our system of checks and balances requires that the three branches respect each other’s roles.

    If a judge feels the need to stay her finding in order to allow a higher court to have its say why wouldn’t our Attorney General do the same?

    We are a nation of laws.  The law is clear in the Virginia Constitution and unclear with regard to the US Constitution.  The method by which the law will be clarified in the US Constitution is well established and time honored.

    The last thing we need in Virginia is the precedent of an Attorney General nullifying laws he or she doesn’t like by playing the role of the judiciary.  Yes, this time the result might be a slight acceleration of doing the right thing.  But what will it be next time?  A Republican Attorney General who decides that some gun control law passed by the Virginia General Assembly maybe, sort of, might conflict with the Heller decision so he or she ties up with the NRA to fight against the law?