Norfolk, Virginia - A federal judge was set to hear arguments Tuesday on whether Virginia's ban on gay marriage should be struck down, a move that would give same-sex marriage its first foothold in the American South.
Virginia's newly elected Democratic governor and attorney general have endorsed the move, angering many Republican lawmakers.
Seventeen states and the Washington capital district allow gay marriage. Most are clustered in the Northeast; none are in the traditionally conservative Southeast. Nationwide, more than a dozen states have federal lawsuits challenging state bans on same-sex marriage.
Opponents of Virginia's ban hope it will meet the same fate as the Clinton-era federal Defense of Marriage Act, which stated that the federal government only recognized heterosexual marriages. The Obama administration refused to defend it, and the US Supreme Court in a landmark ruling invalidated it last year.
The court also struck down a voter-approved ban on same-sex marriage in California on procedural grounds.
Since then, four more states - New Jersey, Hawaii, Illinois and New Mexico - have legalized same-sex marriage.
Now gay marriage advocates are challenging bans in traditionally conservative states like Utah, Oklahoma and Virginia.
In January, Virginia Attorney General Mark Herring's office notified a federal court that it would not defend the 2006
voter-approved constitutional amendment in a lawsuit. Republicans have accused Herring of abandoning his responsibility to defend the state's laws and a handful of protesters gathered at the federal courthouse Tuesday morning shouted phrases decrying his position and carried signs such as “Herring's herring. AG's must uphold the law.”
Across the street, about just as many gay-marriage supporters shouted their support for the plaintiffs in the case and carried signs saying “Marry who you love.”
Newly elected Democratic Gov. Terry McAuliffe has rebuffed calls to appoint outside counsel to defend the ban.
On Monday, Republicans in Virginia House of Delegates passed a bill that would support lawmakers in lawsuits where the attorney general and governor have chosen not to participate.
The lawsuit challenging the ban was filed on behalf of Norfolk couple Timothy Bostic and Tony London, who were denied a marriage license by the Norfolk Circuit Court on July 1. The lawsuit says the state's law denies them liberties that are guaranteed by the Constitution. Since then, Chesterfield County couple Carol Schall and Mary Townley have joined the case. The couple were married in California in 2008 and have a teenage daughter. They want Virginia to recognize their marriage.
The attorneys representing the plaintiffs on behalf of the American Foundation for Equal rights are the same ones that successfully challenged California's ban on gay marriage in court there.
After Herring's office decided not to defend the law, US District Judge Arenda L. Wright Allen considered not even hearing verbal arguments in the case because of the “compelling” filing by the attorney general's office. Wright Allen is a former public defender and assistant US attorney who was appointed to the post by President Barack Obama.
The lawsuit was filed shortly after the US Supreme Court struck down the section of the federal Defense of Marriage Act that prevented gay couples from receiving a range of federal benefits that are generally available to married people.
Herring's announcement last month came on the heels of court rulings in which federal judges struck down gay-marriage bans in Utah and Oklahoma.