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Va. AG Officially Files Brief Against Gay Marriage Ban

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Attorney General Mark Herring holds a news conference in Richmond on Jan. 23. Attorney General Mark Herring holds a news conference in Richmond on Jan. 23.

RICHMOND (WRIC) - Virginia's new Attorney General Mark Herring says he won't defend Virginia's ban on same sex marriage. The decision comes a week before a federal case challenging the state's ban is scheduled to be heard in court.

The Attorney General says when he took the oath of office he promised to defend the constitutions of Virginia, and the United States.

He said he can't support a state law which he believes violates the u-s constitution, saying he will now argue against the state's same sex marriage ban.

"I believe the freedom to marry is a fundamental right, and I intend to ensure that Virginia is on the right side of history and the right side of the law," he says.

Back in 2006, Virginians approved an amendment banning same sex marriages, an amendment herring vote in favor of as a lawmaker. Since then he says his views have evolved to be more inclusive.

"I saw how that vote hurt a lot of people, and it was painful for a lot of people."

Herring says the announcement is based strictly on his legal opinion that the state's amendment violates the US Constitution.

Bill Harrison with the Richmond Gay Community Foundation says it was another major step in the fight for equality.

"I was emotional while he was talking," he says. "I honestly never thought I would live to see today and I'm so proud to be a Virginian right now. I've been an activist since the mid-70s, I do see a light at the end of the tunnel."

But critics say the move steps outside the role of Attorney General.

"It's to pursue a political agenda for his own ambitions," says Victoria Cobb with the Family Foundation. "The Attorney General has disenfranchised over a million voters that voted to stand and have one man, one woman inside their constitution, he's left them defenseless in the court of law and it's incredibly disappointing. "

She calls it unprecedented for an Attorney General to decide to fight against a Virginia law.

Herring disagrees and says there have been several cases where Attorney Generals have gone against state law if they believe it violated the constitution.

Herring's decision does not mean the law changes. That's still up for a judge to decide.

Kristyn Canfield and her wife, Mandy were married outside the state of Virginia, in a state that does allow same sex marriages. Kristyn is the biological mother of their daughter, and says if Virginia does overturn the ban on same sex marriages, Mandy would have more rights when it comes to her daughter.

"When we go to register her for school, we're going to have to produce the documentation," she says. "Should it not be lifted that shows that my wife can pick our daughter up from school, that she can make a decision in the event that I am not available."

Canfield also says she is missing out on tax benefits that she and her wife are not receiving on the state level.

"You keep more of your money for being recognized as a legally married couple so obviously we are receiving that benefit federally but it would be great to receive that benefit locally in the state that we live and work in."

Once Kristyn and Mandy were married in Washington D.C., Kristyn says the process to change her last name was difficult.

"When a man and women goes to file for a marriage license here in Virginia, they can easily go through the process to change their name. It isn't that easy for us."

Copyright 2014 by Young Broadcasting of Richmond

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