(Reuters) - A federal court will consider a bid to overturn Virginia’s constitutional ban on same-sex marriage on Tuesday after the state’s attorney general said he would not defend it.
The hearing in Norfolk is the latest in a series of state-based challenges of gay marriage, which has gained increasing acceptance in recent years.
Two same-sex couples have asked a federal judge to strike down the state’s ban on gay marriage or to order it suspended. The hearing, which will include oral arguments, will be the first for the lawsuit.
The lawsuit, Bostic v. Rainey, argues that the prohibition violates guarantees under the U.S. Constitution, including equal protection of the laws and for due process.
The hearing comes less than two weeks after Virginia Attorney General Mark Herring said the state’s ban went against the constitution. He said neither he nor State Registrar of Vital Records Janet Rainey would defend it as constitutional.
Herring, a Democrat elected in November, will attend the hearing in the U.S. District Court for the Eastern District of Virginia, his spokesman said. Solicitor General Stuart Raphael will argue the state’s case, the spokesman said.
Seventeen states plus the District of Columbia recognize gay marriage, including eight states where it became legal in 2013. Thirty-three ban gay couples from marrying by constitutional amendment, statute or both.
In 2006, 57 percent of Virginians voted in favor of the constitutional ban. But reflecting the swing in public opinion, a poll released in October by Virginia’s Christopher Newport University showed that 56 percent of likely voters opposed the ban, while 36 percent favored it.
Gay marriage received a boost last year when the Supreme Court struck down the Defense of Marriage Act, a law that denied federal benefits to legally married same-sex couples.
The high court also paved the way for gay marriage to resume in California. But those rulings did not address whether state bans on same-sex marriage were constitutional.
Federal judges have overturned such bans in Oklahoma and Utah.
Indiana is pushing ahead with its own prohibition.
Reporting by Ian Simpson in Washington; Editing by Lisa Von Ahn