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Lawmakers Split on AG's Move on Gay Marriage Ban - NBC29 WVIR Charlottesville, VA News, Sports and Weather

Lawmakers Split on AG's Move on Gay Marriage Ban

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Virginia's new Attorney General Mark Herring announced Thursday he will not defend the state's ban on same-sex marriage in court.

Herring stated, “I wouldn't want the state telling my son or my daughter telling them who they can and cannot marry.”

The Democrat says he wants Virginia on the right side of history, but Republicans say he's not doing his job.

Generally speaking, it is the attorney general's job to defend state laws. Virginia's ban on same-sex marriage has been in the state constitution since 2006 – but Herring, in office now just 12 days, announced Thursday that he will not defend the ban in court.

Two separate federal court cases are challenging the constitutionality of the law under the 14th Amendment of the U.S. Constitution.

As one of those cases heads to court next week, Herring is changing the state's legal position. He says the ban is unconstitutional, and will not defend it but opponents say he's not doing the job he was elected to do.

Fifteenth District Delegate Todd Gilbert (R) stated, “He is picking and choosing and, frankly, relying on a very vague and personal notion of what the U.S. constitution says.”

As a state senator in 2006, Herring voted against the right of same sex couples to marry. Eight years later, he said plainly Thursday morning, "I was wrong."

“I believe the freedom to marry is a fundamental right, and I intend to ensure that Virginia is on the right side of history and on the right side of the law,” said Herring.

Thursday, the chairman of the Republican Party of Virginia called on Herring to resign if he "doesn't want to do his job." Some are going even further.

Gilbert says if the Herring isn't going to defend Virginia’s laws, members of the General Assembly should have the chance to do it themselves.

“I wouldn't be sticking my neck out on a bill were I not willing to be the person who would try to stand in,” said Gilbert.

Herring insists he is doing his job. “My focus is on Virginians,” said Herring. “It’s time for the commonwealth to be on the right side of history and the right side of the law.”

The state's laws banning same-sex marriage still apply, and likely won't change without action from the General Assembly or the Supreme Court, but this does represent a big shift in position for the state of Virginia.

Herring's announcement also cast a contentious social issue back into the forefront of Virginia politics, something newly elected Democratic Gov. Terry McAuliffe has appeared eager to avoid - but the governor said he supports Herring's actions.

The Associated Press contributed to this article. 

Democratic Party of Virginia Statement:
DPVA Chair Charniele Herring released the following statement on the AG Mark Herring's finding that Virginia's same-sex marriage ban is unconstitutional. "Today, Attorney General Herring fell on the right side of history. Discrimination of any kind has no place in this country or Commonwealth. I support Attorney General Herring in his legal assessment and conclusion that 'to defend a[n] unconstitutional law...would be a violation of [his oath], misuse of office, and would be inconsistent with precedents'."As we've seen in just a few short days, Virginia Democrats are focused on working to improve the lives of Virginians which includes working to repeal unconstitutional laws and making access to affordable healthcare possible for our working poor. We will continue our work to make sure Virginia continues to move forward."

Republican Party of Virginia Statement:
RPV Chairman Pat Mullins issued the following statement:"It took Mark Herring less than a month to decide he doesn't want to be Attorney General. 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.""The subject matter is irrelevant. Virginia's constitutional amendment and its challenges were well known when Mark Herring spent millions of dollars fighting to become Virginia's attorney. Attorneys don't get to choose whether or not they will defend their clients. Indeed, lawyers have a duty to select their clients carefully, because they are ethically bound to represent the claims of their clients, good or bad.""By running for the office, Mark Herring asked for the challenge of defending Virginia's Constitution and all it contains.""For a court to make a determination on an issue with this much gravity, both sides need to be ably represented. Only through a robust and fair adversarial system -- where both sides have the resources they need to make the best possible case -- can the courts reach a fair decision on this issue. Mark Herring's decision today not only abandons his first duty, it hobbles this vital legal process. It turns what could have been landmark jurisprudence into a political farce. ""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."

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