Herring defends his choice to fight gay marriage ban

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VIRGINIA BEACH

Mark Herring evaluated his role as attorney general and did rigorous legal analysis before his decision not to defend the state’s same-sex marriage ban, he explained at the Virginia State Bar’s annual meeting Saturday.

Herring, a Democrat, announced in January his office would argue that the voter-approved ban was unconstitutional. The backlash was swift and severe.

Protesters marched outside the U.S. District Court in Norfolk in February during hearings on a lawsuit against the state’s 2006 constitutional amendment banning same-sex marriages. A Virginia delegate called for Herring’s impeachment in May.

The atmosphere inside the Sheraton Virginia Beach Oceanfront Hotel was much friendlier Saturday.

Protesters were absent from the sidewalks. No one stood to yell their displeasure while Herring took the podium in front of about 200 lawyers.

Herring, who was elected in November, said he mulled over whether it was within the boundaries of his office to take a stance against the ban. Though he took an oath to defend the Virginia Constitution as well as the nation’s, he realized they were not in accord on this issue.

“As we all learned in law school, when the two of those conflict, the U.S. Constitution prevails,” he said.

The state’s chief public lawyer also studied several landmark court cases before his decision, including one involving the Alien and Sedition Act. Thomas Jefferson did not continue to prosecute violators of that law once he was elected because he said it violated freedom of speech. The act was later overturned.

“In Virginia, when you can cite Thomas Jefferson, that always helps,” Herring said, eliciting a laugh from the audience.

Herring noted that while the power to go against the state constitution should be used sparingly, he thought what he did was right.

“I was determined to show that Virginia has moved forward,” he said, referring to times like the civil rights movement when the state was “on the wrong side of history.”

Herring’s speech ended with a standing ovation. He walked out of the room quietly, shaking a few hands along the way.

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