Herring: ‘They aren’t asking for special rights or special treatment’

Posted at 2:41 PM, Feb 14, 2014

A federal judge declared on the eve of Valentine's Day that Virginia's ban on same-sex marriage is unconstitutional,  and issued a 41-page opinion which several times emphasized the notion of "unlawful prejudice."

On Valentine's Day, Attorney General Mark Herring called a press conference to address the ruling, and what steps remain on the path to same-sex marriage in Virginia.

His remarks, in their entirety, are below.

Mark Herring:

"Good morning everyone and thank you very much for coming.

The ruling by Judge Arenda Wright Allen last night is yet another step.  Another step forward into the long road to insuring that all Virginians are treated fairly and equally under the law.

Virginians deserved to be treated exactly the same, regardless of their race, gender, religion, or sexual orientation.

As Judge Wright-Allen eloquently wrote “We the people have become a broader more diverse family than once imagined.”

This case is fundamentally about whether Virginians are entitled to equal treatment under the law. That right is protected by 14th Amendment, a central guarantee added to the United States Constitution to insure that states would not deny fundamental rights to citizens who have often been discriminated against.

This case is about whether our friends, our neighbors, our co-workers and family members are entitled to the joy, recognition, and benefits of marriage that opposite sex couples now take for granted. That point is so clear to me.

Every time I meet a couple like Tim Bostic and Tony London or Mary Townley and Carol Schall. They are not asking for special rights or special treatment. They are loving, committed couple sharing their lives together, raising families, and contributing to their communities.

What Judge Wright-Allen affirmed last night is that couples like them who are committed to sharing the marital bond deserve to be treated equally under the law. Their children, too, like Mary and Carol’s daughter Emily, are entitled to be respected by the state, not humiliated or stigmatized by government policy that stamps their parent’s relationship as shameful or unworthy.

And I would like to add my congratulations to plaintiffs.  They have shown a lot of courage, and understanding throughout this case.

Judge Wright-Allen grounded her decision in that principle of equal justice under the law. She said “The men and women, and children too, who’s voices join in noble harmony with the plaintiffs today also ask for fairness, and fairness only.”

When I ran for the office of Attorney General, I promised the people of Virginia that regardless of my personal support for marriage equality, I would conduct a rigorous, independent analysis of the Constitutional questions before determining the state’s legal position in this case.

I also said the Attorney General should not be defending laws that deprive Virginians of constitutionally protected fundamental rights, and after conducting my analysis, I concluded that based on extensive court precedent, which we cited in the Commonwealth’s brief and which the Judge cited in her decision, marriage is a fundamental right, protected by the United States Constitution.

I further concluded, and Judge Wright-Allen affirmed in her decision, that Virginia’s laws “denied plaintiffs their rights to due process and equal protection guaranteed under the 14th amendment of the United States Constitution.

She rejected the arguments that proponents of the ban advanced to justify Virginia’s discriminatory marriage laws.

As I had pointed out in court filings, the arguments raised by those supporting Virginia’s ban on same sex marriage, were essentially the same arguments my predecessors used years ago to justify Virginia’s ban on inter-racial marriage and to justify segregated schools. The injustice of Virginia’s position in those cases are not being repeated this time. As Attorney General, I am proud that the Commonwealth is on the right side of the law in this case. The equality of right principle is an ancient one. It applies in this case just as it did in all those landmark civil right cases that came before.

As Attorney General, I upheld an oath to uphold both the US Constitution and the Constitution of Virginia. As we all learn in an early age, when the two are in conflict, the US Constitution must prevail. It is the supreme law of the land. One of the hardest decisions an Attorney General may well have to make is how to respond when a provision of the state constitution conflicts with the higher law set forth in the US Constitution.

I made that call in this case based on my careful and rigorous legal analysis and I acted to protect the rights of Virginians. Indeed, since the Supreme Court’s decision in Windsor, every single federal court to consider the question has agreed with me. In Utah, Oklahoma, Ohio, earlier this week in Kentucky.  And Judge Wright-Allen’s decision now adds another to that growing list.

When we announced the decision to change Virginia’s legal position that in this case, I said the case presented fundamental questions that need to be decided by the judicial branch, and ultimately by the Supreme Court.

That remains true today. In the months ahead, the courts will continue to wrestle with these issues.

Virginia’s marriage ban has received a vigorous defense for lawyers in the clerks named in the lawsuit.

We expect the clerks with move quickly to appeal the decision to the United States Court of Appeals for the 4th Circuit, where they will continue to press an equally vigorous defense. We too will take steps to make sure the case progresses as rapidly as possible. While the appeal process advances, same sex couples in Virginia will not be permitted to marry, and clerks cannot issue marriage licenses to same sex couples. The judge issued a stay of her injunction pending appeal. That is the ruling we ask the court to make, and I believe it is the correct decision.

While I deeply understand that it is difficult to ask loving couples to wait even a day longer to exercise their fundamental rights, our commitment to the rule of law dictates that this process moves forward in an orderly way that a stay will provide.

When a federal district court judge in Utah that state’s ban on gay marriage without issuing a stay, couples who quickly married there have now found themselves in a legal limbo after the Supreme Court issued a stay pending appeal. In light of her ruling, Judge Wright-Allen must have felt the same way. The path she chose is similar to the one pursued by the judge in the recent Oklahoma case, and in my opinion, it is the right path.

Although this process is far from over, it remains a great day for equality in Virginia. I’m happy to take any questions you may have, and I’ll close with words from Judge Wright-Allen’s decision, “We have arrived on another moment in history when we the people becomes more inclusive and our freedom more perfect.”

Full video of his remarks, and reporter questions: