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.
Decision to Brief Against Virginia in Marriage Amendment Case
“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.”