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Righting past wrongs: Herring overrules discriminatory legal opinions

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Virginia attorneys general issued at least 58 opinions between 1904 and 1967 that either applied or interpreted racially discriminatory state laws, including laws that imposed poll taxes, prohibited interracial marriage, and mandated segregation in public schools and other social spaces.

Attorney General Mark Herring, whose term ends on Saturday, today issued an official opinion overruling those official legal opinions from his predecessors.

“For too long, many of the Commonwealth’s laws unconstitutionally discriminated against Black Virginians in an attempt to keep them down, and the unfortunate reality is that attorneys general employed these racist laws with that same goal in mind when issuing opinions,” Herring said. “While these discriminatory and racists laws are no longer on the books in Virginia, the opinions still are, which is why I am proud to overrule them today. We are not the Virginia we used to be, and in order to truly be the Virginia that we want to be in the future we need to remove any last vestiges of these racist laws.”

“During the dark days of Jim Crow and Massive Resistance, the Attorney General was more often an opponent to be defeated rather than a friend to be counted on; a guardian of an inequitable status quo, rather than the rights of his constituents,” said State Sen. Mamie Locke, who requested the opinion from Herring, along with Del. Lamont Bagby. “We have come such a long way as a Commonwealth, and I believe we have been so lucky to have an attorney general for the last eight years who put the protection and expansion of Virginians’ civil rights at the center of his work and at the heart of his mission. By reversing and overruling these racist and discriminatory legal opinions, Attorney General Herring is correcting an historical injustice and showing the true character of our Commonwealth in the 21st century.”

“When an attorney general speaks, their words carry weight. They help shape and influence the law, and they send a message about who in Virginia gets to enjoy the protections of the law,” said Bagby, chair of the Virginia Legislative Black Caucus. “Too often in the past, the power of the Office was wielded in support of unjust and unconstitutional laws that were racist and discriminatory. By taking this step, Attorney General Herring is truly closing that chapter in the history of our Commonwealth and helping us move forward as a more inclusive and just Commonwealth.”

“These opinions, unfortunately, shaped the laws, life, and culture of the Commonwealth for too long. And while many of those opinions have been legislatively changed, today’s ruling by the Attorney General is an important step towards true reconciliation,” said Virginia State Conference NAACP President Robert N. Barnette Jr. “Thanks to the leadership of Attorney General Mark Herring with the support of Sen. Mamie Locke and Del. Lamont Bagby, Virginia’s Office of the Attorney General is moving in the right direction to finally overturn 58 historically discriminatory opinions of this office.”

“This is an historic achievement and an important step in acknowledging and growing beyond the injustices perpetrated by past attorneys general,” said Cynthia Hudson, former chief deputy attorney general of Virginia from 2014-2020, and the chair of the Commission to Examine Racial Inequity in Virginia’s Law. “This move by Attorney General Herring is a perfect complement to our work on the Commission to Examine Racial Inequity in the Law. Just like Virginia wiped racist, outdated laws off its books in recent years, so too should it wipe away racist, outdated legal opinions that supported and helped to implement those laws. I was so proud to help get this project off the ground during my time in the AG’s Office, and I’m thrilled to see it come to fruition.”

“The Commonwealth’s history is marred with the persistent legacy of slavery and racial injustice,” Herring noted in the opinion. “Through the Civil Rights movement and the development of federal Equal Protection doctrine, Virginia has made important strides towards approaching racial equality. Sadly, past Virginia Attorneys General have often promoted racist policies, as when the Commonwealth opposed interracial marriage in Loving v. Virginia. But in recent years, the Office of Attorney General has become an active force for equality, among other actions, establishing Virginia’s first Office of Civil Rights, removing barriers to the removal of Richmond’s Robert E. Lee statue before the Supreme Court of Virginia and other symbols of Confederate propaganda, and opposing discrimination in housing, employment, and education.”

You can find a comprehensive list of Virginia Attorney General opinions that Herring overruled with today’s official opinion here.

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