RICHMOND (AP) -- Virginia Attorney General Mark Herring is joining the lawsuit that challenging the state's ban on gay marriage.

'This action won't change the law, but what is different is the chief legal officer for the state will be coming forward with strong, persuasive legal arguments as to why it's illegal,' Herring said at a Thursday morning news conference.

In a brief filed in U.S. District Court in Norfolk Thursday, Herring said he's studied the ban, says it's unconstitutional and he will no longer defend it in federal lawsuits challenging it.

A copy of the Commonwealth's filing is available here.

'I voted for the law in 2006, but my feelings for the law have changed,' he said.

Herring discussed his reasons in challenging the state's position in the case of Bostic v. Rainey, a challenge in federal court to Virginia's ban on marriage rights for same-sex couples.

Herring filed a brief electronically with the federal court in Norfolk, where one of the lawsuits is, notifying the court of the state's change in position in the case filing.

'We'll transmit the appropriate docs to the courts this morning,' Kelly told Thursday morning.

'Virginia is fortunate to have an Attorney who understands the meaning of Thomas Jefferson 's words in our Declaration of Independence that 'all men are created equal...with certain unalienable rights ... and among these...the pursuit of Happiness,' Robert Ruloff, the attorney for the plaintiffs said Thursday. 'Hopefully, more states will follow the lead of Virginia, a very conservative state, and understand that Happiness means the right to marry the person if your choice.'

The other lawsuit is in Prince William County.

'Because there are other defendants - circuit court clerks in Norfolk and Prince William County - the case will move forward with those parties defending the ban,' Kelly added.

The attorney general decided the ban was unconstitutional after a thorough legal review of the matter.

In his brief, he will also place this action in the context of Virginia's longer history in court cases such as this. Kelly said while Virginia has a storied place in the founding of our nation and has contributed to the development of our democracy, it has also been on the wrong side of court cases involving school desegregation, interracial marriage, and state-supported single-sex education.

'He will say today 'It's time for Virginia to be on the right side of the law, and the right side of history,'' Kelly also told

Virginia has emerged as a critical state in the nationwide fight for gay marriage. The state's shift comes on the heels of recent court rulings in which federal judges struck down gay marriage bans in Utah and Oklahoma.

With the election of Gov. Terry McAuliffe and Herring as attorney general, Virginia made a hairpin turn away from the socially conservative officeholders they succeeded, particularly Republican Attorney General Ken Cuccinelli, an activist on social issues such as abortion and gay marriage. Herring had campaigned, in part, on marriage equality, and McAuliffe issued an executive order on inauguration day prohibiting discrimination against state employees who are gay.

Virginia voters approved the same-sex marriage ban 57 percent to 43 percent in 2006. But a Quinnipiac University poll in July found that 50 percent of registered Virginia voters support same-sex marriage, while 43 percent oppose it. The survey's margin of error was plus or minus 3.1 percentage points.

Proponents of striking down the state's ban say the issue resonates in Virginia in particular because of a landmark 1967 U.S. Supreme Court decision involving a Virginia couple and interracial marriage.

Lawyers for George E. Schaefer III, the clerk of the Norfolk Circuit Court, offered the following statement:

As a duly elected official, our client takes seriously his obligation to administer the law as written. During his tenure as Clerk, Mr. Schaefer has distinguished himself by providing superior service to the public and by his adherence to the law. The staff at the Norfolk Circuit Court Clerk's office treat all members of the public with equal dignity and in strict compliance with all federal, state and local laws. As Clerk, Mr. Schaefer and his staff are not free to vary or depart from those laws regardless of their personal feelings or societal views.

The Plaintiffs in this case are exercising their constitutional right to test the legality of laws which were duly enacted in the Commonwealth of Virginia. Unless those laws are changed, the Clerk may not issue marriage licenses to same sex couples. Indeed, to do otherwise is currently a crime in the Commonwealth.

Read or Share this story: