Without explanation, the U.S. Supreme Court said yesterday it won’t hear any of the five appeals that seek to preserve state bans on same-sex marriage, clearing the way for gay couples to get married in Virginia and four other states. Virginia’s Attorney General Mark Herring joins Kojo to look at the implications for Virginia and for the nation.


  • Mark Herring Attorney General, Virginia (D)


  • 13:44:22

    MR. KOJO NNAMDIAs of 1:00 yesterday afternoon, gay couples can get married in Virginia. Same-sex marriage became legal in the Old Dominion yesterday thanks to a Supreme Court announcement that it will sit out same-sex marriage cases this term. That means it won't hear a case that asked to preserve Virginia's voter-approved ban on same-sex marriage. And that means a lower court ruling overturning the ban, stands.

  • 13:44:44

    MR. KOJO NNAMDIVirginia attorney general, Mark Herring, who has called the ban unconstitutional and argued against it on behalf of the state, immediately cleared the way for same-sex couples to marry. Opponents of same-sex marriage expressed frustration at the Supreme Court's inaction, said it means the polarizing debate will continue. But some observers say the Court's silence, which adds five more states where same-sex marriage is legal, means the nation may now have moved beyond the point of no return on this hot-button issue.

  • 13:45:13

    MR. KOJO NNAMDIJoining us to look at the implications for Virginia and the country is the aforementioned Mark Herring, Virginia attorney general. He joins us by phone. Mark Herring, thank you very much for joining us.

  • 13:45:22

    ATTY. GEN. MARK HERRINGWell, thank you for inviting me, Kojo. It's great to be back on the show.

  • 13:45:26

    NNAMDIThank you. As soon as word arrived yesterday that the Supreme Court would let stand the lower court ruling overturning Virginia's ban on same-sex marriage, you called for gay marriages to begin. What are the logistics? Do you know how many gay couples were married in Virginia yesterday afternoon?

  • 13:45:41

    HERRINGYeah, I don't have the numbers yet, but the 4th Circuit Court of Appeals mandate issued at 1:00 o'clock yesterday. And our office had been preparing for whatever ruling and decision the Supreme Court was going to make. We had been -- made plans for a couple of months now, working with the agencies, state agencies, whichever way the Court ruled. We had forms ready to go. We were in contact with the clerks' offices in counties and cities around the state, so that as soon as the mandate issued at 1:00 o'clock in the afternoon, the clerks' offices were ready to go and begin issuing marriage licenses to couples.

  • 13:46:21

    HERRINGAnd it was really great to see. I had the, you know, privilege of witnessing and celebrating a renewal of vows ceremony with two of the plaintiffs in this case, Carol Schall and Mary Townley, yesterday afternoon in Richmond. And it was just a real joyous occasion to see the loving couples being able to have the marriage recognized, who were lawfully married in another state. It was great to see couples who have been waiting for so long for this day to come, to be able to get married.

  • 13:47:00

    NNAMDIIf you have questions or comments for Atty. Gen. Mark Herring, call us at 800-433-8850 or send email to kojo@wamu.org. Do you think the Supreme Court should have taken the same-sex marriage case so it could make a ruling that would apply nationwide? 800-433-8850. You can send us a tweet, @kojoshow.

  • 13:47:20

    NNAMDIMr. Attorney General, from now on couples who get married in Virginia will fill out forms that say spouse and spouse, rather than husband and wife. The Supreme Court's decision not to hear cases from Virginia and four other states means 24 states now allow same-sex marriage. That number could grow to 30, thanks to legal ripple effects. Some people say that will effectively put the country beyond the point of no return on same-sex marriage. Do you agree?

  • 13:47:47

    HERRINGYou know, I do. And I think, you know, the Supreme Court, in not taking these cases, means that it let stand those Courts' of Appeals rulings that were -- that have struck down the bans as unlawful and discriminatory. And it is difficult to imagine a scenario now where some time in the future the Supreme Court decides, oh, actually, that's not really the signal we wanted to give. We're now going to allow these bans to stay in effect. And I, you know, and it's going to affect not just the ability of couples to marry, but it means that these couples are going to be able to adopt children, which is huge.

  • 13:48:29

    HERRINGBecause in Virginia, you have to be married in order to be able to adopt. In medical decisions, the decision-making authority if -- of spouses in a hospital. It means that they're now going to be able to have visitation rights. It means that there are going to be workplace benefits for spouses, joint tax returns can be filed, spousal privileges in legal proceedings. There's a whole host of rights and privileges that come along with marriage that I think at a certain point you can't later take them away.

  • 13:49:04

    NNAMDIOur guest is Virginia Atty. Gen. Mark Herring. He joins us by phone. You, too, can join the conversation by phone. Call us at 800-433-8850. What does the Court's decision to sit out the same-sex marriage debate this year mean for the future of same-sex marriage across the country? Do you think states should continue to have the power to set their own rules for same-sex marriage? 800-433-8850.

  • 13:49:27

    NNAMDIMark Herring, opponents of same-sex marriage and even some supporters, expressed frustration that the Supreme Court won't make a decision that creates uniformity nationwide, at least not this term. From your vantage point would you like to see a Supreme Court ruling that does set a national policy on same-sex marriage?

  • 13:49:46

    HERRINGWell, yesterday's action was not what any of us expected really. I think most observers thought that the Court would take at least one of the cases, but, again, by letting stand these lower Courts' of Appeals decisions, allowing the marriages to go forward, it's really difficult to see that other Circuit Courts in other parts of the state are not going to see that that's the direction the Court is moving in and will follow the same weight of authority that's now out there. And, you know, I also think for Virginia, it was really good.

  • 13:50:23

    HERRINGIt not only was a day of joy and happiness for the lives of thousands of loving couples and their children and their family whose lives are going to be changed in a positive and transformative way, it was a really good feeling about Virginia. We had a chance to show ourselves and the nation that we are an open and inclusive state. And Virginia was leading the way on this really important civil rights issue of our time. Almost 50 years ago Virginia got it wrong in the -- in a racial marriage case of Loving v. Virginia. But this time Virginia was leading the way.

  • 13:51:07

    NNAMDIOn to the telephones. Here is Chuck, in Washington, D.C. Chuck, you're on the air. Go ahead, please.

  • 13:51:12

    CHUCKHi. I think the attorney general kind of answered my question just a moment ago, but what's his opinion on -- with the Supreme Court not granting review on this, there are a couple pending appellate decisions out there yet. I believe the 6th Court has one, there's another out there, I think. And then, of course, the District judge upheld the law -- the gay marriage ban in Louisiana. Are the appellate courts going to take a look at this refusal to grant review and use that as reason to overturn existing gay bans in places where they still exist?

  • 13:51:58

    NNAMDIMark Herring?

  • 13:51:59

    HERRINGWell, I think it's a very good question. And I think that's my assessment. I think there were reporters and observers who saw the arguments in the 6th Circuit that you mentioned. And a lot of people have speculated that that might have been sort of a 2:1 leaning, you know, to lean to uphold the ban, but perhaps in light of the Supreme Court yesterday letting stand the three other circuits in the 4th, the 10th and the 7th, that that's a pretty clear signal that the Court must think that those rulings were correct. And would now be what I think is the great weight of authority on the issue.

  • 13:52:43

    HERRINGAnd I think that would be very persuasive for those other Courts of Appeals, like the 6th. So it may very well switch how that case will come out. There are other cases all around the country. There was a Federal District Court decision in Louisiana that I think came out the wrong way, that will undoubtedly work its way up through the Court of Appeals. And if there is a Court of Appeals in another part of the country that doesn't rule in a way that would strike down these discriminatory bands, then the Supreme Court will be in a position to correct it very quickly.

  • 13:53:21

    NNAMDIChuck, thank you very much for your call. Mr. Attorney General, on behalf of Virginia, could -- well, start by reminding us a little bit about the history of same-sex marriage in Virginia. In 2006, state voters approved a constitutional amendment banning gay marriage. When you took office in January of this year you said you would not defend that ban. Why not?

  • 13:53:42

    HERRINGWell, that's right. When I came into office the case that was finalized yesterday, in fact, was already up for oral argument on cross-motions for summary judgment. We did a very thorough and rigorous legal analysis immediately on taking office in January. And I concluded the law was unconstitutional and would be -- would likely be struck down if it went to the Supreme Court.

  • 13:54:09

    HERRINGAnd I felt under those circumstances that with such an important, fundamental right, like the right to make the marriage decision freely and independently, that that affected so many people in Virginia that it was one that the attorney general really needed to step up and not just refuse to defend the current ban, but take up the side of the plaintiffs and argue that the ban should be struck down.

  • 13:54:38

    HERRINGThat's what we did and we won. The lower court agreed with us. And, you know, I also put it in context of Virginia's unique civil rights history. Back in -- and people sometimes forget that…

  • 13:54:53


  • 13:54:55

    HERRING…in Brown v. Board of Education in 1954 there were actually several defendants. And one of them was Price Edward County, Va. And we argued on the wrong side of school desegregation in 1954. And I mentioned the Loving v. Virginia case, where the Lovings, from Caroline County, Va., were denied a license to marry because they were of different races. And, once again, Virginia argued on the wrong side.

  • 13:55:20

    HERRINGAnd as recently as 1996, Virginia argued against gender equality in public higher education. In every one of those cases, those landmark civil rights cases, Virginia argued on the wrong side. Well, this time I was determined to make sure that the injustices of Virginia's position in those past civil rights cases was not going to be repeated this time. And that Virginia was going to be on the right side of the law and the right side of history. And we were.

  • 13:55:48

    NNAMDIWell, eight years ago Virginia voters approved the same-sex marriage ban with over 50 percent of the vote. Do you think that public opinion in the commonwealth has changed since then?

  • 13:55:59

    HERRINGOh, I think it has changed in Virginia, just as it has changed in the hearts and minds of millions of Americans. But one of the things that has remained constant is the idea of equality, equality of right, which is guaranteed by the Constitution, that the state, that the government should treat everyone equally. And what has changed though, is how that principle has been applied to a new group of people. And in this case, committed, loving, same-sex couples and now they're going to be treated by their state equally. And it's a great feeling.

  • 13:56:37

    NNAMDIYour neighbors, Maryland and the District of Columbia have both approved same-sex marriage by popular vote. Do you think that had any bearing on Virginia at all?

  • 13:56:47

    HERRINGWell, I think over time more and more people have come to see the issue differently because they've gotten to know gay and lesbian Virginians. Their fellow workplace -- their coworkers, their neighbors, their family members. They've seen marriages take place in other states. And they've come to see that these are people. They're not like anybody else. And they're not asking for special privileges.

  • 13:57:13

    HERRINGThey're not asking for special treatment. They're only asking to be treated equally and fairly. And I think more and more Virginians, just like more and more Americans, can see the inherent inequity of treating them differently.

  • 13:57:27

    NNAMDIThe Supreme Court waited to strike down bans on interracial marriage until 1967, when the number of states allowing such unions had grown to 34 even though interracial marriage was still opposed by a significant majority of Americans. Do you see a similar pattern here? We only have about 20 seconds left.

  • 13:57:44

    HERRINGWell, again, I think more and more Americans have seen the issue differently. Virginia is an open and welcoming and inclusive place. And we want to be the kind of place -- and we were able to show not just ourselves, but the rest of the country that that is who we are.

  • 13:58:03

    NNAMDIMark Herring. He is Virginia attorney general. Mark Herring, thank you so much for joining us.

  • 13:58:07

    HERRINGThank you. It's great to be back.

  • 13:58:08

    NNAMDIAnd thank you all for listening. I'm Kojo Nnamdi.

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