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Will Virginia's Next Attorney General Defend Prohibition Against Gay Marriage?

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Same-sex marriage has been banned by constitutional amendment since 2006, but that could soon change.
Same-sex marriage has been banned by constitutional amendment since 2006, but that could soon change.

In Virginia, two new lawsuits are challenging the state's constitutional ban on gay marriage. But it may not only be lawyers that decide the case—voters may also play an important role in determining the outcome.

Republican Attorney General Ken Cuccinelli says his office will vigorously defend the amendment to the Virginia Constitution that prohibits gay marriage. But Cuccinelli won't be in office when the case comes before a judge. The next attorney general will, and their role in whether or not to defend the 2006 change to the constitution will be key to whether or not same-sex marriage is legalized in Virginia.

Republican Mark Obenshain says he will defend the amendment. But the Democrat in the race, Loudoun County state senator Mark Herring, isn't so sure. Campaign manager Kevin O'Holleran says Herring has not yet decided if he will defend the amendment.

"The case has come down just in the last couple of days. We're reviewing it to get an official opinion on the matter and we will continue to move forward," he says.

Unlike Obenshain, Herring is in a difficult spot on this issue. The prohibition against same-sex marriage is very unpopular with Democrats, and he needs their support. But University of Mary Washington professor Stephen Farnsworth says it would be very difficult to campaign for attorney general on a platform of selectively enforcing the laws.

"When people elect attorneys general, they want to hear them say that they will defend the law, not that they will choose not to. But there may be political advantages to saying that this is a law that, if elected, you would not support," he says.

Herring's campaign manager says he's not sure when the candidate would have a position on the issue or if it would be before Election Day.


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