Virginia, Same-Sex Marriage, Right Side of History

01.23.14

A Blue (Not a Red) Herring

Big news this morning to be filed under Yes, Elections Matter: The state of Virginia is changing its position today and endorsing same-sex marriage.

This is the announcement of the state's new attorney general Mark Herring, a Democrat. Herring told NPR's Steve Inskeep that he will stop defending Virginia's same-sex marriage ban and place the commonwealth on the side of the plaintiffs, two same-sex couples fighting for the right to be married in the state in a case called Bostic v. Rainey. "As attorney general, I cannot and will not defend laws that violate Virginians' rights," Herring said. "The commonwealth will be siding with the plaintiffs in this case and with every other Virginia couple whose right to marry is being denied."

The former attorney general, of course, was Ken Cuccinelli, who was on the side of bigotry. Herring's Republican opponent, Mark Obenshain, made it clear that he was going to defend the state's ban if elected.

Herring himself waffled on the question, so he's no trailblazing leader on the issue. Eight years ago as a state senator, he was against letting gay couples marry. But to his credit, he switched during the campaign last year. He beat Obenshain by just 165 votes out of 2 million cast.

Conservatives will be screaming today that Herring has violated the will of the people since Virginia voters, back in 2006, Virginia voters supported a ban on same-sex marriage to the tune of 57 percent. That's a fair point, but it's not a dispositive one. A state's attorney general clearly has the right to make determinations about the constitutionality of state laws as he or she sees fits, just as others who disagree have the right to challenge those determinations in court.

I guess the Supreme Court will be the ultimate arbiter of whether Herring is on the right side of what it determines to be the law. But there is no question that Herring is on the right side of history. And this being Virginia, the seat of the old Confederacy, history weighs a little more here on this subject than it does in some other places: It was a Virginia law against interracial marriage that the Supreme Court struck down in Loving v. Virginia in 1967.

That was plenty controversial then. Nearly 50 years later, of course, it's embarrassing and absurd and worse that there ever was such a law. And 50 years from now--actually, I think more like 25--Virginia's erstwhile position is going to look just as embarrassing.

And so is history made. One-hundred sixty-five votes. A landmark day in the commonwealth's history. Bravo to this blue Herring.