Metro Weekly

Herring files amicus brief in favor of marriage equality

Virginia AG's brief urges Supreme Court to resolve issue by determining there is a fundamental right to marriage

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Attorney General Mark Herring

Virginia Attorney General Mark Herring (D) on Thursday filed an amicus brief arguing in favor of marriage equality ahead of April 28, when the U.S. Supreme Court is slated to hear oral arguments concerning appeals of various marriage rulings, many of which have overturned a number of statewide bans on same-sex marriage throughout the country. 

In the brief, Herring not only highlighted Virginia’s history with same-sex marriage, but its current experiences, with 1,289 married couples, constituting about 6 to 8 percent of all marriages since marriage equality was legalized on Oct. 6. During that time, the state registrar has recorded six completed adoptions by same-sex couples and nine birth certificates with both spouses’ names listed as the child’s legal parents. But Herring also introduced a unique argument that has not been fleshed out by the courts in previous rulings: defining the right in question as “the fundamental right to marriage,” rather than just “the right to same-sex marriage.” According to a press release from Herring’s office, when a fundamental right is at stake, such as the right to marry, there must be some “compelling state interest” to limit that right, which can otherwise not be restricted under the Fourteenth Amendment. In Herring’s view, marriage equality opponents’ justifications offered for bans such as Virginia’s now overturned Marshall-Newman Amendment banning any recognition of same-sex relationships all fall short.

“The States’ proffered justifications for their same-sex-marriage bans cannot survive rational-basis review, let alone the more demanding standards,” Herring wrote in the brief. “Windsor rejected the same procreation-channeling and optimal-child-rearing justifications, finding that Congress had ‘no legitimate purpose’ in refusing to recognize valid same-sex marriages. The States’ excuses for denying marriage equality are no stronger here. It is utterly implausible that permitting same-sex couples to marry and raise their children in two-legal-parent households will make different-sex couples less likely to marry and raise their children in two-legal-parent households. Other courts have justifiably ridiculed such excuses.”

Lastly, Herring’s brief also urges the Supreme Court to issue a decisive ruling in favor of marriage equality, which would resolve the issue of a fundamental right to marriage and cut off at the knees attempts by officials in more conservative states to deny same-sex couples marriage licenses. 

“The Constitution created a government dedicated to equal justice under law,” Herring concluded. “That principle is not new. What is new is this generation’s recognition that that principle cannot be reconciled with governmental discrimination against gay people.”

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