Virginia Attorney General Mark Herring has filed a brief supporting Bostic v. Rainey – the Ted Olson and David Boies-backed challenge to the state’s ban on same-sex marriage that is currently awaiting further ruling in the Fourth Circuit Court of Appeals.
In a 79-page brief filed Friday, Herring argued that the Supreme Court has consistently found marriage to be a fundamental right protected by the due process and equal protection clauses of the federal Constitution.
Herring leaned heavily on the 1967 Loving v. Virginia case, in which the Supreme Court overturned Virginia's ban on interracial marriage.
To argue that the framers of the Constitution never envisioned same-sex marriage is of no legal consequence, Herring argued. The Loving case, he said, taught that the Constitution "protects the fundamental right to marry, even if the way in which it is practiced would have surprised the Framers or made them feel uncomfortable."
Virginia's gay-marriage ban was enshrined in a state constitutional amendment in 2006.
"Many good and decent Virginians" undoubtedly voted for the amendment "because of sincerely held religious beliefs that homosexuality is wrong or that gay marriage conflicts with Biblical teachings," Herring argued. "But religion cannot justify state-sponsored discrimination."
You can read the brief in full, HERE.