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Read the Attorney General's brief here.

Frequently Asked Questions About Virginia's Position In The Bostic V. Rainey Case

What is Bostic v. Rainey?

Why did the Attorney General change the Commonwealth's legal position in Bostic v. Rainey?

What are the legal precedents that led to this decision?

Is the Attorney General within his power to change the state's position?

Doesn't the Attorney General have to defend the state's laws?

Have other attorneys general done things like this before?

Does this mean Virginia's same-sex marriage ban is over?

Does this mean the case is over?

Does this mean Virginia's marriage ban will be undefended in court?

Why didn't the Attorney General appoint special counsel to defend the ban?

Is Attorney General Herring just doing this because he thinks same-sex couples should be able to marry?




What is Bostic v. Rainey?

Bostic v. Rainey is a case currently pending in the U.S. District Court for the Eastern District of Virginia that challenges Virginia's ban on marriage for same-sex couples.

Why did the Attorney General change the Commonwealth's legal position in Bostic v. Rainey?

After a thorough and comprehensive legal analysis of precedents and recent court rulings, Attorney General Herring has determined that Virginia's ban on marriage for same-sex couples is unconstitutional because it improperly denies the fundamental right to marry, which is guaranteed by the U.S. Constitution, to thousands of Virginians on the basis of their sexual orientation. The Supreme Court has consistently said that marriage is a fundamental right that the government cannot limit without a very strong reason. Because there is no sufficiently strong reason to  deny same-sex couples the right to marry, Attorney General Herring has concluded the Supreme Court would strike down Virginia's ban if it were presented with the case. For these reasons, he has notified the federal court deciding Bostic that he is changing Virginia's legal position to reflect his determination that the state's marriage ban is unconstitutional.

What are the legal precedents that led to this decision?

There is considerable Supreme Court precedent stating that marriage is a fundamental right guaranteed by the U.S. Constitution and rulings stating that the federal government cannot discriminate against same-sex couples. There are also rulings from other federal courts striking down similar same-sex-marriage bans in other states.

As a fundamental right, the right to marriage cannot be denied unless (among other things) limiting that right serves a compelling State interest.  The reasons offered in support of Virginia’s same-sex-marriage ban do not meet even the most deferential legal standard of review, let alone this heightened scrutiny.    

Based on these precedents, among others, the Attorney General has concluded that if the Supreme Court were to be presented with the facts of this case, it follows that it would again uphold the right to marry and find the exercise of that fundamental right may not be denied to these loving couples based solely on their sexual orientation.   The two federal courts that have most recently considered this issue agreed, striking down the bans on same-sex-marriage in Utah and Oklahoma.

Is the Attorney General within his power to change the state's position?

Yes. The Attorney General is the sole person empowered to present the Commonwealth's position in legal matters and it is up to him or her to determine that position through rigorous legal analysis.

Doesn't the Attorney General have to defend the state's laws?

The Attorney General has a duty to support laws that are constitutional, and has just as strong a duty not to defend laws that he has concluded after careful and thorough analysis are unconstitutional. The Attorney General swears an oath to support the United States Constitution and the Constitution of Virginia. When a state law or part of the Virginia Constitution is in conflict with the United States Constitution, as Attorney General Herring has concluded in this case, the United States Constitution prevails because it is the supreme law of the land.

Furthermore, the Attorney General's primary client is the people of Virginia, not just state agencies. When the constitutional rights of the people of Virginia are being violated, he has a duty to protect their interests.

Have other attorneys general done things like this before?

Yes. There is precedent for an attorney general  or executive branch official refusing to defend a law that he or she has determined is unconstitutional.

Does this mean Virginia's same-sex marriage ban is over?

No. Virginia's ban on same-sex marriage will continue to be enforced until and unless a court or the legislature acts to end its enforcement . The State Registrar of Vital Records will continue to enforce the ban, and clerks are not legally permitted to issue marriage certificates to same-sex couples.

Does this mean the case is over?

No. Before announcing the Commonwealth's change in legal position, Attorney General Herring took steps to ensure the case could continue and the court could hear both sides of the issue.  The Circuit Court Clerks for the City of Norfolk and Prince William County remain defendants.  Lawyers for both clerks will provide a full and capable defense for the ban in court.

Does this mean Virginia's marriage ban will be undefended in court?

No. The Circuit Court Clerks of Norfolk and Prince William County are both represented by able lawyers who will make their best possible case for the marriage ban's legality. They also have a brief filed by previous Attorney General Ken Cuccinelli to assist them in their defense of the ban.

Why didn't the Attorney General appoint special counsel to defend the ban?

Special counsel is not necessary in this case because there are still two other parties  in the case, the Circuit Court Clerks for the City of Norfolk and Prince William County, who are vigorously defending the ban's legality.

Is Attorney General Herring just doing this because he thinks same-sex couples should be able to marry?

Attorney General Herring's decision to oppose Virginia's marriage ban is based on his legal analysis of the facts in this case and relevant court rulings, especially those in recent years that address this specific issue.