Why Attorney General Mark Herring Should Be Impeached

If Virginia Attorney General Mark Herring wants to repeal the 2006 voter approved state constitutional amendment prohibiting same-sex marriage in Virginia, then the proper procedure to do that is through voter approval of an amendment repealing it. Herring’s decision to unilaterally declare it unconstitutional, not defend it in court and instead side with plaintiffs seeking to strike it down is a direct violation of his sworn duty as Attorney General to defend the state’s constitution and its laws, which should result in his impeachment and removal from office under the “neglect of duty” provision contained in the Constitution of Virginia.

For the record, here is the oath of office that Herring took not even 2 weeks ago:

“I do solemnly swear (or affirm) that I will support the Constitution of the United States, and the Constitution of the Commonwealth of Virginia, and that I will faithfully and impartially discharge all the duties incumbent upon me as ……………….., according to the best of my ability (so help me God).”

You don’t get to cherry pick which laws you like and which ones you don’t when you’re the state’s top law enforcement official. Your job is to enforce them all. If you believe that a part of the state constitution or a law is unjust, then as Attorney General you can submit your recommendation to the General Assembly for them to change the law or put a constitutional amendment on the ballot to correct it.

It is not the job of the Attorney General to decide whether a law is constitutional or not (and in this case, the law in question is part of the Virginia state constitution, so by definition it cannot be unconstitutional at the state level).  Furthermore, neither the U.S. Supreme Court nor the Fourth Circuit Court of Appeals that has jurisdiction over Virginia have ruled on the constitutionality of this issue, so even if Herring were to argue he is following the U.S. Constitution, there is no legal basis for that assertion.

It is time for our elected officials in the General Assembly, from both parties, to take a stand and affirm that we have proper procedures for dealing with such matters legislatively, not by fiats and whims.  If they fail to do so, they will have ceded considerable authority that they will not be able to regain.

UPDATE:

Obenshain Statement on Attorney General Mark Herring’s
Decision to Brief Against Virginia in Marriage Amendment Case
RICHMOND — Today, Senator Mark Obenshain (R-Harrisonburg) issued the following statement about Attorney General Mark Herring’s announcement that his office will not defend Virginia’s Marriage Amendment, and will be filing a brief asking the court to strike down a provision of the state constitution.

“Virginians, like millions of others across the country, are engaged in a robust debate over marriage, one that speaks to an important unresolved constitutional issue. Here in Virginia, the state’s Marriage Amendment is a matter of perennial legislative debate, and that Amendment could well fall: the voters could repeal it or a court may strike it down. But it is emphatically not the role of the Attorney General to make that determination unilaterally, and that may well be the consequence of Attorney General Herring’s decision.

“Fair minded people disagree on the issue of gay marriage, but this is, fundamentally, about the rule of law and allowing the system to work. Whether the Marriage Amendment will survive court scrutiny is clearly an unresolved question, but our system of law does not work when one side of the argument fails to show up. It is manifestly the job of the Attorney General to defend the law and let it rise or fall on it merits in court.”

Attorney General Herring, who on the campaign trail refused to take a clear position on whether he would defend Virginia law in this and other instances, will be filing a brief in support of the plaintiffs, according to spokeswoman Ellen Qualls.

“The Attorney General is the Commonwealth’s lawyer,” said Obenshain. “It is deeply inappropriate for the Attorney General to use state resources to actively oppose a duly ratified constitutional amendment. Through this decision, Herring is effectively seeking to unilaterally reverse the actions of the General Assembly in adopting the Amendment, and the people of Virginia in ratifying it. There are deeply held convictions on both sides of this issue, which is why it is all the more important that the case has its day on court—and that both sides of the dispute are ably and robustly argued.”

In a September interview with the Richmond Times-Dispatch, Herring said that he would “poll the attorneys in the attorney general’s office who have the expertise in the particular subject matter” to help him determine whether or not to defend the Marriage Amendment or other laws in court. At a debate on October 2nd, he pointedly declined to state whether he would defend state laws with which he disagreed.

Obenshain concluded, “I look forward to working with the Attorney General on many important issues for the good of all Virginians, and have no intention of highlighting every possible point of disagreement that may arise throughout Herring’s term in office, but I consider the question of whether or not the Office of the Attorney General is to defend Virginia law a matter of utmost importance, something that goes to the heart of the duties of the Attorney General. This is especially true given Mark Herring’s dissembling comments made over the past six months on the campaign trail.  Virginians should be disappointed that he didn’t display the courage to share his intentions when repeatedly asked during his campaign. Today’s decision sets a disturbing precedent and has the potential to deprive Virginians on both sides of this important issue of the legal scrutiny the matter clearly merits.”


46 thoughts on “Why Attorney General Mark Herring Should Be Impeached

  1. Why not? Holder refused to enforce DOMA prior to the SCOTUS hearing it. It’s “the new normal” after all! Remember folks, even in the case of John Brown, the US prosecuted him on the grounds that slavery was the law of the land (immoral and wrong as it was, it was still enforced by the attorneys). You can argue the merits of the marriage amendment and be for or against it, but it is still the law. We as citizens cannot just pick and choose the laws that we want to follow and then not expect to be prosecuted if we are found to be breaking them.

    1. This is why this is a republic, not a tyranny, supposedly. Besides, homosexual “marriage” is NOT the law of the land, and if you knew what a Bible was, you’d know that, and if you knew what the ‘Common Law’ was you would know that too. Of course, if there wasn’t so many stupid people, there wouldn’t be Democrats and we wouldn’t be having this discussion.

  2. Besides, for someone who was barely elected by the skin of his teeth, he’s not exactly taking a bi-partisan position. But then, liberals seldom do — they expect conservatives to toe the line and express outrage when they don’t. It’s a sign of things to come for the next 4 years. Congratulations Virginia. Hope you’re looking forward to it!

  3. Herrring should get an award for breaking through the nonsense of the extreme right wing agenda. We are a different state and nation than when we were back in 2006. And dont forget, Cooch tried to back out of a similar matter with state colleges back in his day!! Anyway, go cry in your beer – all of you – with your calls for impeachment and disbarment!! Its a new day in the Commonwealth…….as Herring and McAuliffe bring Virginia kicking and screaming into the 21st Century………………..hohohohoho

    1. Glad to see that you have utter disregard for the Rule of Law and proper procedures and processes. If you are so confident that we are a different state and nation than we were in 2006, then why not go the proper legal route and have a constitutional amendment on the ballot to repeal it?

      Just remember that if this naked powergrab stands that it will be used against your side one day as well.

  4. Ken, what goes around comes around. If the Rule of Law means nothing, then there is no order. It is absolute chaos — although I would imagine that the liberals wouldn’t mind that at all, provided they are the ones who restore order under their own terms.

    1. Anonymous…………..YES, there is a rule of law, BUT, there are lots of laws and as a non-lawyer, I like to see an AG who will interpret laws (in this case, ignore) for the greater good and not attempt to enforce laws that serve no one’s interest!! Remember, we still fight the 2nd Amendment interpretations…….and always will…………..

  5. “Remember, we still fight the 2nd Amendment interpretations…….and always will…………..”

    Yes. We know. However, were the shoe on the other foot, would you take so kind to an AG who, I don’t know, refused to enforce Roe V. Wade in VA?

  6. The unions are demoralized, they need a victory SOMEWHERE. Will Herring and McAwful help to make that a reality? Time will tell…

    1. Governor McAuliffe will make things right in the Commonwealth……….a long time coming………Virginia needs clear thinking moderates from Upstate New York (me and Terry) to bring us back into the real world!!

    2. That you deem this position — and Verry McAwful — “moderate” is as much a fraud as Herring’s justification for his violation of his oath of office and his duties as an attorney.

    3. James, indeed you know Virginia’s warped history better than i do………how could you endorse a continuance of its evil laws and policies? The same-sex marriage matter is not unlike the anti mixed-race laws of a generation ago. The bottom line is there is a very conservative group of rural legislators that have long run this evil history. Us New York transplants want things different today. Perhaps another State would make things right ———-a north and south viginia would do it……….workers and hi-tech in the north………………caves to the south…………then you could move there……………hummmmmmmm…….you did go to school in Farmville…………that would be an ideal capital!!!

    4. Perhaps I do … and sexual deviance and behavior is not race. Laws against miscegenation — laws of rather recent vintage, historically — are plainly unconstitutional under the language and easily ascertainable intent of the Fourteenth Amendment, yet advocates for the radical homosexual agenda can point to no similar history demonstrating that its Framers intended to mainstream sexual deviance. Indeed, the assault on marriage is plainly an effort to reject 5000-6000 years of human history on what constitutes “marriage.”

      And perhaps you should go back to New York and keep your evil there.

  7. “Virginia needs clear thinking moderates from Upstate New York (me and Terry) to bring us back into the real world!”

    Ken, suffering from delusions of grandeur are we much?

  8. By the by, why did you come down to VA from NY? Couldn’t stand the higher taxes and liberal policies once fully implemented? (Just wondering).

    1. I moved to Georgetown when in my 20s and settled in Northern Virginia and worked in DC…….just like thousands of us………I guess Virginia’s past stuck to some, perhaps like yourself, while others of us signed on to reality!!!

  9. Fascinating how the liberals do such a bang-up job implementing their agenda, both fiscal and social, and then they proceed to move to more conservative states and do it all over again. Tell me folks, isn’t this what locusts do? (To be fair, plenty of conservatives are on the move as well, but it seems like everything the liberals touch turns to ruin, while the more conservative states prosper).

    1. Virginia’s prosperity has nothing to do with conservatism and everything to do with the positioning for federal jobs and largesse in Northern Virginia and Tidewater……..while the backwater areas run most of the state politically…….

    2. Actually I moved here from Albany to escape the cold weather………..damn, now I brought the weather here!!

  10. OK let’s take this one by one:

    ” indeed you know Virginia’s warped history better than i do………how could you endorse a continuance of its evil laws and policies?” The marriage amendment was passed in 2006. And how exactly is marriage evil? Besides, Herring voted for it.

    “The same-sex marriage matter is not unlike the anti mixed-race laws of a generation ago.”

    Apples to oranges, in my view. With race, it’s skin color. With homosexuality, it’s conduct. I frankly have no problem with either type of relationship, especially if they are loving and committed. However, I take the Catholic view of marriage as a sacrament and that is my viewpoint on it.

    “The bottom line is there is a very conservative group of rural legislators that have long run this evil history.”

    Say it with me: DEM-O-CRATS ran the segregated Virginia for decades. Only when the Republicans became competitive did things change.

    “Us New York transplants want things different today. ”

    And there’s no way you couldn’t consider, you know, moving back if you don’t like the way things are in VA already? Rather than try to impose your view, as most liberals do?

    “Perhaps another State would make things right ———-a north and south viginia would do it”

    Right, because that has worked so well in the past.

    “……….workers and hi-tech in the north………………caves to the south…………then you could move there……………”

    Right because all conservatives are knuckle-dragging neanderthals in your mind.

    “hummmmmmmm…….you did go to school in Farmville…………that would be an ideal capital!!!”

    Huuummmm, last time I checked, Richmond isn’t in NoVa, so perhaps they should be the ones looking for a new capital. Perhaps Falls Church or Alexandria. Then Jim Moran could run for Governor!

    OK that was fun. Thanks for playing!🙂

    1. The last proposed gun restrictions that the Neanderthal, knuckle-dragging republicans in the us house defeated laws that would enhance background checks and control automatic weapons……you all talk about th Founders……how could you possibly think they envisioned automatic weapons and computer-based id programs……constitution works for relevant situations not for every conceivable interpretation by the right-wing

  11. His oath was defend the U.S. Constitution and the Virginia Constitution. When there is conflict, the U.S. Constitution overrides. He is upholding the U.S. Constitution. The Supreme Court laid out all the arguments in Windsor. If Windsor is the law of the land, then a state constitutional amendment against same-sex marriage violates the 14th amendment.

    1. Brilliant Anonymous……..case s/b closed……………why all the rants from the right? As usual, they are dead-wrong again………

  12. Folks this is not just any law. It’s the Constitution of Virginia. The foundational law of our State. Herring has breached his oath (as has McAuliffe by officially backing his action) and both deserve to be impeached and removed from office for this. Ken Cuccinelli never came close to making any such a move, and had homosexual marriage been specifically protected by the VA Constitution during his service as AG I fully expect he would have defended that in court were it to have been legally challenged. I expect my elected officers to do their duty and uphold their oaths or face the consequences!

  13. God doesn’t take a head count to see what the latest polls of popular opinion are . Sin is still sin. The same attorney general placed his hand upon a Bible and took an oath. The courtroom esteems the Bible as truth. Scripture makes it plain that homosexuality and lesbianism is sin against God. Sin is not a civil right. A sinful right , yes. You have a right to sin. God has a right to judge it. For the wages of sin is death .

  14. John, since when has the Bible become our Constitution(s)? Sorry pal, check the right governing documents for the law.

    Now if you are just proclaiming your religious belief then I have no problem with that. But don’t use it as some justification for an “impeachment”.

  15. Sorry Riley, but Mark Herring’s decision ISN’T cherry picking of one law over another but of you cherry picking one part of his oath of office over another. In his oath, he swore first to defend the “Constitution of the United States” AND AFTER THAT the “Constitution of the Commonwealth of Virginia”.

    The U.S Constitution trumps the Virginia Constitution, hence the basis Herring’s decision. If you want to use his oath as the basis of any argument, then you have to use ALL of it not just the section that supports your point of view!

    1. The Supreme Court decision last year on DOMA doesn’t directly impact this particular instance, so there is not settled law or precedent for Herring to say that Virginia’s constitutional amendment is unconstitutional under the U.S. Constitution. If there were, then I would agree with you. Since there is not, it is merely Herring’s opinion which is not binding.

      That said, I have no idea why the Full Faith and Credit Clause hasn’t really been utilized more as a tactic in these court cases. That is how I see such laws eventually falling.

      “The Full Faith and Credit Clause has also been invoked to recognize the validity of a marriage. Traditionally, every state honored a marriage legally contracted in any other state. However, in 1993, the Hawaii Supreme Court held that Hawaii’s statute restricting legal marriage to parties of the opposite sex establishes a sex-based classification, which is subject to Strict Scrutiny if challenged on Equal Protection grounds (Baehr v. Lewin, 852 P.2d 44, 74 Haw. 530). Although the court did not recognize a constitutional right to same-sex marriage, it raised the possibility that a successful equal protection challenge to the state’s marriage laws could eventually lead to state-sanctioned same-sex marriages. In response to the Baehr case, Congress in 1996 passed the Defense of Marriage Act (110 Stat. § 2419), which defines marriage as a union of a man and a woman for federal purposes and expressly grants states the right to refuse to recognize a same-sex marriage performed in another state.”

    1. Clever ply on words John Buchanan……….but really, just think, if Cooch was still in office, he could spend the next 4 years embarassing some Virginians trying to defend the de jure DOMA Amendment…………..Cooch could spend millions of our tax dollars on this………Is that really what Virginians elected Herring to do? And now, you are calling Herring a Pinko……….this is funny, but not really………………..go to your room!!!

  16. i meant to say “de jure DEAD DOMA AMENDMENT”…………by virtue of a recent Supreme Court ruling that effectively nulifies the DOMA Amendment

  17. The Tidewater Libertarian Party has called for Herring to step down or be impeached and disbarred for conflict of interest. See TidewaterLiberty.com for the resolution.

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