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The Boston Globe

Politics

Virginia awaits ruling on gay marriage ban

Attorney general says that state can’t defend law

NORFOLK, Va. — US District Judge Arenda L. Wright Allen said Tuesday that she will rule quickly on a challenge to Virginia’s ban on same-sex marriages, but gave no clue about what her decision might be.

‘‘You’ll be hearing from me soon,’’ Wright Allen said at the conclusion of a nearly two-hour hearing, emphasizing the last word.

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Virginia for the first time advanced its new legal position that a 2006 referendum approved by voters to define marriage as only between a man and a woman violates the US Constitution. It is the next question for courts to decide as the nation’s view of same-sex marriage undergoes a radical transformation: whether states, which traditionally define marriage, may withhold it from same-sex couples.

Virginia Solicitor General Stuart Raphael said new Attorney General Mark R. Herring, a Democrat, had made a ‘‘courageous’’ decision to say that the state could not defend the ban. He compared it to previous cases in which the commonwealth has defended segregation, a ban on interracial marriage, and keeping women from attending Virginia Military Institute — all decisions overturned by the Supreme Court.

Herring’s decision has infuriated Republicans in the Virginia General Assembly, who accuse him of neglecting his duty to defend state laws. The House has passed a bill that would allow it to hire its own lawyer to participate in future legal proceedings, at the US Court of Appeals for the Fourth Circuit in Richmond and possibly the Supreme Court.

At Tuesday’s hearing, the law was defended by lawyers for the circuit court clerks in Norfolk and Prince William County, who issue marriage licenses.

One of the lawyers, Austin R. Nimocks, told Wright Allen that Virginia had an interest in promoting marriage between a man and a woman because of the unique ‘‘procreative dynamic’’ shared by heterosexual couples.

‘‘We have marriage laws in society because we have children, not because we have adults,’’ Nimocks said.

But Theodore Olson, representing the American Foundation for Equal Rights and the plaintiffs in the lawsuit, disputed the point. ‘‘Marriage is not all about children,’’ Olson said. ‘‘It is about freedom; it is about liberty.’’

Judges have a duty to be suspicious of decisions by the majority that single out groups that have historically been the victims of discrimination, Olson said.

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