Virginia’s Attorney General’s Decision Not To Defend Marriage Inequality Is Not Unprecedented

CREDIT: Mark Keam

Virginia Attorney General Mark Herring (D)

Newly inaugurated Virginia Attorney General Mark Herring (D) announced Thursday that he believes Virginia’s state marriage inequality amendment violates the United States Constitution and that he will not defend it against ongoing court challenges. While Virginia’s leading anti-LGBT activists quickly condemned his decision, it is completely in line with the actions of conservative predecessors that those marriage equality opponents strongly supported.

Herring, who voted for the amendment as a state Senator in 2006, made it clear throughout his 2013 campaign that his view had changed, telling voters: “I support marriage equality, and I will use the powers of the Attorney General’s office to promote equality.” Noting the Virginia’s record of being “on the wrong side of history and the wrong side of the law,” he said Thursday:

HERRING: After a very careful and thorough analysis, I believe Virginia’s ban on marriage bewteen same-sex couples violates the 14th amendment of the United States Constitution. And as Attorney General I cannot and will not defend laws that violate Virginians’ rights. And so instead, the Commonwealth will be siding with the plaintiffs who have brought this case and be siding with every other Virginia couple whose right to marry has been denied.

He noted that the Attorney General “has a duty to support those laws that are constitutional and validly adopted” but also has “just as strong a duty to not defend laws that he has concluded [to be] unconstitutional.” His office moved quickly to file an official change of position with the federal court.

The Family Foundation, Virginia’s leading anti-LGBT group, predictably attacked the move. Victoria Cobb, the group’s president, said in a statement, “It’s disappointing that he wouldn’t be clear about his intentions on this issue while campaigning for the office. More importantly,” she added, “it’s frightening that politicians like the Attorney General feel that they can pick and choose which aspects of the Constitution they deem worth to defend and apply.”

Similar arguments followed from anti-LGBT Virginia politicians including House of Delegates Speaker William Howell (R), who opined that Virginia’s AG “has a constitutional and statutory obligation to enforce and defend the duly adopted laws and Constitution of Virginia,” and the amendment’s co-author Delegate Bob Marshall (R), who complained, “We appropriate money for people to defend the constitution, not to attack it. This is a complete dereliction of his duty.”

But Herring was more than clear about his views throughout the 2013 campaign. Indeed his opponent campaigned on a pledge to defend the same-sex marriage ban and criticized Herring for not making a similar promise.

And Herring’s description of his obligation is also absolutely correct. The oath of office for the Attorney General of Virginia — which Herring took earlier this month — includes a solemn vows first to “support the constitution of the United States” and second to support “the constitution of the Commonwealth of Virginia.” Article VI, Clause 2 of the United States Constitution makes clear that the federal constitution takes precedence over state constitutions — so when the two are in conflict, it is absolutely up to the Attorney General to make that decision. As the person duly elected to make that judgment, Herring, rather than an un-elected lobbyist or state legislators who choose to ignore the federal constitution’s supremacy, is exactly the person tasked by Virginia’s citizenry with determining which laws to defend.

Moreover, two recent Republican Attorneys General of Virginia — both Family Foundation favorites who had the support of Howell and Marshall — also made clear that they would not defend what they believed to be unconstitutional. In 2003, then-Attorney General Jerry Kilgore joined dozens of his counterparts from other states in signing a brief claiming that he was duty bound to challenge any statute he believed be unconstitutional. A year later, the Family Foundation’s Cobb donated to his gubernatorial campaign and she even served on one of his advisory boards.

Herring’s immediate predecessor, Ken Cuccinelli II, also refused to defend laws he deemed unconstitutional. Last year, one of his spokesmen noted, “If the attorney general’s analysis shows that a law is unconstitutional, he has a legal obligation to not defend it.” Indeed in 2009, Cuccinelli himself said in a debate, “I will not defend what I, in my judgment, deem to be an unconstitutional law.” “If I determine it not to be constitutional,” he explained then, “I will not defend it. My first obligation is to the Constitution and the people of Virginia.” That pledge did not stop the Family Foundation and from frequently hosting Cuccinelli at events, accepting his sponsorship, and cheer-leading for his political career.

State Sen. Dick Black (R) attacked Herring’s position as well, saying, “I don’t know what the difference between a dictatorship and this is.” But while the judiciary may ultimately agree with supporters of the state constitutional amendment that it is indeed constitutional, it is hardly revolutionary for an attorney general to take a position that it is not. Virginia’s state amendment will still be defended in the courts and ultimately it will be up to them to decide whether Herring’s view that same-sex couples are entitled to equal legal protection is correct.