same sex marriage

Washingtonpost.com:

Virginia Attorney General Mark R. Herring will announce Thursday that he believes the state’s ban on same-sex marriage is unconstitutional and that Virginia will join two same-sex couples in asking a federal court to strike it down, according to an official close to the attorney general with knowledge about the decision.

The action will mark a stunning reversal in the state’s legal position on same-sex marriage and is a result of November elections in which Democrats swept the state’s top offices. Herring’s predecessor, Republican Ken Cuccinelli II, adamantly opposes gay marriage and had vowed to defend Virginia’s constitutional amendment banning such unions, which was passed in 2006 with the support of 57 percent of voters.

Herring, too, had voted against same-sex marriage eight years ago, when he was a state senator. But he has said that his views have changed since then and that on Thursday he will file a supportive brief in a lawsuit in Norfolk that challenges the state’s ban, said two people familiar with his plans.

Herring will say that Virginia has been on the “wrong side” of landmark legal battles involving school desegregation, interracial marriage and single-sex education at the Virginia Military Institute, one official said. He will make the case that the commonwealth should be on the “right side of the law and history” in the battle over same-sex marriage.

He has not informed Republicans in Richmond about his plans; an uproar is likely. GOP lawmakers have worried that Herring would change the state’s position — such decisions are up to the attorney general — and have contemplated legislation that would allow them to defend the law in court.

The attorney general thinks that is unnecessary, the official said. The clerks of the circuit court in Norfolk and Prince William County are defendants in the suit, and both are represented by independent counsel.

The challenge will not be if there is a right to same-sex marriage.  Instead, the challenge will be that marriage is a right and cannot be denied because the couple wanting to enter the institution are same-sex.   Prince William is involved because Clerk of the Court Michele McQuigg has asked to be part of the defense of the current law.

Herring also will say that the state’s law will be defended in the Norfolk challenge. Norfolk clerk George E. Schaefer is represented by a private lawyer paid by the state’s Department of Risk Management. Prince William clerk Michèle B. McQuigg, who asked to intervene in the case, is represented by the conservative legal group Alliance Defending Freedom.

Virginia is seen as fertile ground for the challenge because of its past laws on segregation and inter-racial marriage.

Current trend is not on Virginia’s side as an avalanche of change is sweeping the nation regarding same-sex marriage.   Most of the cases all center around the same idea of civil rights.  How can one group be granted a basic right and another group be excluded.  A strong parallel has been drawn between this soon to be case and Loving v. Virginia which ended the ban on inter-racial marriage in the 1960’s.

I don’t think it matters what or how we feel about gay marriage or same sex marriage at this point.  The ban singles out one class of people to deny rights to.  The current law will be overturned, in my opinion.  Many of Virginia’s laws have been overturned when they deny basic rights.

Herring will say that Virginia has been on the “wrong side” of landmark legal battles involving school desegregation, interracial marriage and single-sex education at the Virginia Military Institute, one official said. He will make the case that the commonwealth should be on the “right side of the law and history” in the battle over same-sex marriage.

Herring voted against same sex marriage 8 years ago and since then , has reconsidered.  Is this a male thing?  Are males basically more opposed to same-sex marriage or unions than women?  I don’t see how its even a question.  It doesn’t matter what I think or what my religious beliefs tell me.  I can no more support a ban on same-sex marriage than I could support a ban on inter-racial marriage or segregated schools or same sex education.  It just doesn’t pass current Constitutional muster.  I also don’t think the TRAP laws will pass either but that’s another story on another day.

Meanwhile, social conservatives and many Republicans will be enraged over this turn of events.  They will attempt to pass laws allowing them to by-pass the attorney general to defend state laws, regardless of how indefensible the law is.  Some will shout that their religious rights are being violated, even though they are not.  (No minister has been forced to perform a marriage ceremony.)  Government officials will have to perform marriage ceremonies.  The choice there is to give up one’s post.

Interesting times ahead.  Interesting times.

24 Thoughts to “AG Herring believes Va ban on same-sex marriage is unconstitutional”

  1. It does not matter what he believes. The duty of his office is to defend state law when challenged., not join the attacking side.

  2. I strongly disagree. Why should an attorney general waste Virginia’s money defending a law that is unconstitutional?

    Let’s just go with the examples given. Should Virginia have fought desegregation? How about laws against miscegenation?

    I don’t think we have an ‘attacking side.’

    The flip side of your argument is that Roe v. Wade is the law of the land. However, I don’t see you criticizing Cuccinelli for putting all the power of his office towards restricting abortion rights.
    Clearly you have 2 standards. One for liberal causes and a different one for conservative issues.

  3. email from Mark Herring:

    A short time ago, I announced that after thorough but prompt legal review, I have concluded that Virginia’s ban on same-sex marriage violates the Due Process and Equal Protection clauses of the Fourteenth Amendment to the United States Constitution.

    Therefore, I will not defend Virginia’s ban on same-sex marriage in court later this month. The Commonwealth will instead side with the plaintiffs who have brought this case and side with every other Virginia couple whose right to marry is being denied.

    This decision is based on my analysis of the law and my duty to fulfill the obligations of the office of attorney general. To defend a law that I have concluded is unconstitutional after thorough review would be a violation of my oath, a misuse of the office, and would be inconsistent with the precedents established by prior Virginia attorneys general.

    Virginia is in many ways the cradle of democracy. Washington, Jefferson, Madison, Mason, Monroe and others called our state home. And America’s first freedom, religious freedom, was written into law only a few blocks from my office in Richmond. As Virginians, we have much to be proud of. But too often in our history, our citizens have had to lead the way on civil rights while their leaders stood against them. This will not be another instance.

    It is time for the Commonwealth to be on the right side of history and the right side of the law.

  4. Scout

    Herring, like all lawyers, also took an oath to defend and protect the Constitution of the United States. I’m not sure what I think about him taking an active, brief-submitting role in the case in this litigation, but I certainly don’t fault him for giving obvious and much-needed legal advice to Virginia that this constitutional amendment (one that was thrown on the ballot as hamburger helper to get a good “conservative” turnout, as was done in other jurisdictions around the country) is indefensible.

    In any event, the amendment did its intended job – it got people out to the polls on a subject about which there is a fairly strong emotional reaction. We really don’t need it now for the next election, do we?

  5. Kelly_3406

    Otherwise known as a bait and switch. If Herring had announced his “evolution” prior to the election, he probably would not have gotten the opportunity to betray the Virginia electorate that approved the ban.

    As for Cuccinelli not defending Roe vs Wade, the comparison does not hold. Roe vs Wade exists only due to judicial fiat, which can always be reversed by a future Supreme court. There is no federal law, no constitutional clause, no constitutional amendment that grants this choice as a right. Moreover, the result has been a staggering 55 million abortions (according to the Washington Post), which is ~1/6 the ENTIRE U.S. population. In any other situation, terms like national horror and genocide would be used to describe it.

    1. If all those abortions happened in one year, perhaps. However, ….that isn’t what happened. Try about a million a year, both before and after roe v. Wade was decided. And for the fact that the decision was made by the Supreme Court, I suppose we could say that Brown v. Board of Education, Loving v. Virginia, Griswald v. Connecticut, just to name a few, could all be over turned. For that matter, amendments can be repealed also.

      Roe v. Wade is a perfectly valid example.

      I expect Herrings evolution would have nothing to do with whether he was elected or not. Most people simply aren’;t concerned if gays marry. His evolution came from his voting for the marriage amendment. Who would have known how he voted? Don’t we have secret ballot still?

      That’s how you want to see things, not how they really are. I don’t think he made any bones about thinking the ban on gay marriage was unconstitutional. I knew it. It had to be from campaign literature that came to my house.

  6. Kelly_3406

    ” He (Herring) has noted that his job, if he is elected attorney general, would require him to try in good faith to find a basis to defend the amendment’s legality, a duty that he has pledged to fulfill.”

    Virginian Pilot
    10 Sept 13
    http://hamptonroads.com/2013/09/herring-attorney-general

  7. I suppose, in good faith, he can’t find grounds to defend it. He said it violates the 14th amendment.

    (That is if he even said it. It doesn’t look like a quote to me)

    Why do you want marriage amendment upheld so badly? Do you not think it is discriminatory to allow one group of people to marry and disqualify another? I see no difference between gay marriage and inter-racial marriage as far as discrimination goes.

    It really has nothing to do with what I might find appealing or not appealing. Its a matter of civil rights.

    I find the Republic angst over this topic rather hypocritical after all the shenanigans Cuccinelli pulled over suing over this and suing over that. His tilting at windmills cost us a fortune. I am glad Herring is watching our money better. The tide has turned. Similar laws to Virginia’s have already been overturned. It is only a matter of time.

  8. Steve Thomas

    “I strongly disagree. Why should an attorney general waste Virginia’s money defending a law that is unconstitutional?”

    Because he took an oath of office to defend the constitution of Virginia. For the same reason a public defender must defend a client he knows is guilty. Because the SCOTUS has not ruled on the constitutionality of state constitutional bans on same-sex marriage. Because the SCOTUS has ruled previously that marriage is within the purview of the state. Because he explicitly said during the campaign that whether or not he agrees with a particular statute, it is his duty as AG to uphold and defend the law. Because as the AG, he has a duty to his client; the commonwealth.

    Your premise regarding “wasting taxpayers dollars defending a law that he believes unconstitutional” is flawed. He’s not saving the taxpayers anything. Now the individual counties will have to pay to defend the law. Furthermore, with his joining the party who is suing his client, (the state), he is committing legal malpractice. Any lawyer will tell you this is true.

    There is a right and proper way to go about this. Repeal the amendment through the legislative process, if it be the will of the citizens of Virginia. Herring would be fulfilling both his oath, and his duties, by stating so. Remember “Those compelled against their will, are of the same opinion still.”

    1. There is another way….wait until that amendment is overturned by the courts and it will be.

      As a native Virginian, my memories go back to massive resistance and all the tweaking and constitution defending of those days. I never went to school with a black person until I went to college and when I did go to college I couldn’t go to the college of my choice because of my gender.

      Oooops, response started in two different rooms.

  9. @Steve Thomas
    Herring also took an oath to defend the Constitution of the United States. Virginia will continue to enforce the law until it is overturned.

    There is another way to get rid of the amendment and that is to sit back and wait for it to be overturned.

    Would you encourage any attorney general to support a law that to him or her clearly violates the Constitution of the United States?

    Why, pray tell, will the counties have to defend the law? Nothing has changed. No one is saying to allow gays to marry.

    Have you seen the latest polls on the subject? That amendment would probably not pass today. Ingenious move on the part of Karl Rove.

    I can’t find the direct quote that he said he is required to defend the law. I totally disagree about legal malpractice. A lawyer has already spoken out here and they did not say he was committing legal malpractice.

    Would you have expected the attorney general to have defended massive resistance laws? Laws against inter-racial marriage? Gender exclusion from schools?

  10. Steve Thomas

    Moon-howler :@Steve Thomas Herring also took an oath to defend the Constitution of the United States. Virginia will continue to enforce the law until it is overturned.

    He took this oath: 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 . . .” He has taken the opposing side, and is therefore neither faithfully nor impartially supporting the constitution.

    There is another way to get rid of the amendment and that is to sit back and wait for it to be overturned. We can do that, but it won’t settle the matter. Only when the “will of the people” is exercised is the matter settled, unless the Supreme’s are the ones doing the overturning.

    Would you encourage any attorney general to support a law that to him or her clearly violates the Constitution of the United States? Yes. I expect any state elected official to support Virginia first, whether it be the Governor, LG, AG.

    Why, pray tell, will the counties have to defend the law? Nothing has changed. No one is saying to allow gays to marry. Because the individual counties are the ones who issue marriage licenses. Herring, through his actions has waived his offices standing. Only a party that has standing can argue for or against the law. It will be the counties that have to do this.

    Have you seen the latest polls on the subject? That amendment would probably not pass today. Ingenious move on the part of Karl Rove. Then lets go through the process, and repeal it, or reaffirm it, whatever the results are. But the polls showed prop 8 would fail in CA. It passed.

    I can’t find the direct quote that he said he is required to defend the law. I totally disagree about legal malpractice. A lawyer has already spoken out here and they did not say he was committing legal malpractice. I have also heard a former Federal prosecutor Joeseph DiGenova state that not only has he committed legal malpractice, as a public official his actions are impeachable.
    Would you have expected the attorney general to have defended massive resistance laws? Laws against inter-racial marriage? Gender exclusion from schools?

    Yes. I would expect him to uphold any and all laws, while they are on the books, while using their public platform to say they would like to see it repealed. But this is more than a law. It’s in the state constitution. If they disagree, they should publically state that they support repeal…especially if it was a law they had previously voted for. If he won’t defend this part of the state constitution, why should I expect him to uphold any of it? My right to free speech? My right to keep and bear arms? A woman’s “right to choose”? Our rights of freedom of association? I say let us use the legislative process. Let Senator Ebin put his bill in again next year, when his party controls the committees, and “the polls” indicate that the bill would pass. Then let the voters go to the ballot box, and if it is their will, the amendment will be repealed. Better to do it this way and settle the matter, than to have some judge force a decision onto the people. Acceptance…isn’t that what creates the permanence, or hasn’t this nation learned anything since Dred Scott, Plessy v Fergeson, or Roe v. Wade?

    1. He is upholding the law. He just won’t defend it. If the law weren’t being upheld, then I think you would have a strong beef. But he is.

      Most controversial laws in the south have been settled via the courts. Just is. Do you think the southern states would have ever voted for the same outcome we got in Brown v. Board of Education? I think we would still have separate but unequal today if the courts hadn’t stepped in. Same with Griswald, same with Loving, same with Lawrence–people don’t like change. They aren’t going to go peacefully.

  11. Steve Thomas

    Moon-howler :@Steve Thomas Herring also took an oath to defend the Constitution of the United States. Virginia will continue to enforce the law until it is overturned.

    He took this oath: 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 . . .” He has taken the opposing side, and is therefore neither faithfully nor impartially supporting the constitution.

    There is another way to get rid of the amendment and that is to sit back and wait for it to be overturned. We can do that, but it won’t settle the matter. Only when the “will of the people” is exercised is the matter settled, unless the Supreme’s are the ones doing the overturning.

    Would you encourage any attorney general to support a law that to him or her clearly violates the Constitution of the United States? Yes. I expect any state elected official to support Virginia first, whether it be the Governor, LG, AG.

    Why, pray tell, will the counties have to defend the law? Nothing has changed. No one is saying to allow gays to marry. Because the individual counties are the ones who issue marriage licenses. Herring, through his actions has waived his offices standing. Only a party that has standing can argue for or against the law. It will be the counties that have to do this.

    Have you seen the latest polls on the subject? That amendment would probably not pass today. Ingenious move on the part of Karl Rove. Then lets go through the process, and repeal it, or reaffirm it, whatever the results are. But the polls showed prop 8 would fail in CA. It passed.

    I can’t find the direct quote that he said he is required to defend the law. I totally disagree about legal malpractice. A lawyer has already spoken out here and they did not say he was committing legal malpractice. I have also heard a former Federal prosecutor Joeseph DiGenova state that not only has he committed legal malpractice, as a public official his actions are impeachable.
    Would you have expected the attorney general to have defended massive resistance laws? Laws against inter-racial marriage? Gender exclusion from schools?

    Yes. I would expect him to uphold any and all laws, while they are on the books, while using their public platform to say they would like to see it repealed. But this is more than a law. It’s in the state constitution. If they disagree, they should publically state that they support repeal…especially if it was a law they had previously voted for. If he won’t defend this part of the state constitution, why should I expect him to uphold any of it? My right to free speech? My right to keep and bear arms? A woman’s “right to choose”? Our rights of freedom of association? I say let us use the legislative process. Let Senator Ebin put his bill in again next year, when his party controls the committees, and “the polls” indicate that the bill would pass. Then let the voters go to the ballot box, and if it is their will, the amendment will be repealed. Better to do it this way and settle the matter, than to have some judge force a decision onto the people. Acceptance…isn’t that what creates the permanence, or hasn’t this nation learned anything since Dred Scott, Plessy v Fergeson, or Roe v. Wade?

  12. Steve Thomas

    Let us not forget that in the history of our legal system, the courts have made the “wrong” decision just as often as they have the “right” decision. The people, are supposed to be the ultimate arbiters of things. It says so right there in the Constitution, right there with all that “enumerated powers” stuff. So, if the people decide to repeal the amendment, who’s to argue?

    1. I guess ‘right’ and ‘wrong’ depend on who you are and what your perspective is.

      Do you think a repeal question would ever make it on the ballot?

    2. Steve, I think you and I are just going to be polar opposites on this one. As long as he enforces the existing law, I am good with his decision not to defend it.

      I stayed stirred up over Cuccinelli for 4 years. I think that you will probably have a 4 year term of being stirred up. It isn’t fun, I will grant you. The Kooch kept me kicking though.

  13. clueless

    @Steve Thomas
    Agreed, I voted for Herring because I thought it would help to take back the AG’s office from political manipulation. The AG is the Commonwealth’s lawyer. The AG does not make law, they defend law. Although I think the law is probably unconstitutional, Herring took an oath to defend the VA Constitution. A police office can’t pick and choose the laws that he/she want to enforce, the State’s lawyer can’t either.

    1. I sure wish you all had held Cuccinelli’s feet to the fire this closely.

  14. Censored bybvbl

    The Repubs need to think about how their belly-aching over Herring’s refusal to defend a discriminatory law makes them look to unbiased observers- or the to the subjects of their discrimination. And we all know the hoopla over the ban on same-sex marriages was merely ginned up to promote Republican candidates, particulately social conservatives and the dumb, at the polls. It was an effort to get out the base of scaredy cats and old geezers. No sane person I know thought he or she would be forced into a gay marriage or that gays who married would somehow impact our marriages.

    This hue and cry to defend the law doesn’t do much to recruit Repubs. When Virginia discriminated against me by collecting my tax dollars but not allowing me entry into its state universities based on my gender, I didn’t think Virginia was a wonderful state looking out for my interests by piddling around waiting for its laws to succumb to Constitutional challenges or waiting for enough old geezers in the state legislature to see the light. Inter-racial couples didn’t think Virginia was just doing its best to help them either by waiting to have its laws over-turned.

    Too many mediocre white guys are still viewing the world through their lens of special privilege.

  15. Scout

    As Censored notes, the need for the amendment was to drive votes several years back. That’s done now. It was pretty clearly unconstitutional then, and it hasn’t gotten any more constitutional since. I agree with those who say it would be better to repeal the thing, but even repealing it would probably get wrapped up in another GOTV drive.

  16. @Moon-howler
    Roe vs Wade is a federal case. The current discussion is a state case. The AG is the state’s lawyer. He defends state law. AS IT IS.

    1. What you are overlooking is the fact that all the little laws that are whittling away at abortion right and Roe v. Wade are state laws trying to circumvent Federal law.

      Federal law trumps state laws.

      The AG is not obliged legally to defend state laws according to almost every thing I have read.

  17. Steve Thomas

    “The AG is not obliged legally to defend state laws according to almost every thing I have read.”

    Then maybe you should read this, which is the Virginia State Code:http://www.ag.virginia.gov/About%20the%20Office/2011%20OAG%20Codes.pdf

    You and I can “disagree”, but we must accept that one of us is wrong. Based on the Virginia state code, ss 2.2-513: § 2.2-513 – Counsel for Commonwealth in federal matters
    The Attorney General shall represent the interests of the Commonwealth, its departments,
    boards, institutions and commissions in matters before or controversies with the officers and several departments of the government of the United States.
    (Code 1950, § 2-91; 1966, c. 677, § 2.1-126; 2001, c. 844.) Pretty clear that he has a legal obligation to defend his client, the commonwealth, in this matter. It is up to the client, the commonwealth, to remedy the situation through repeal, or, fight it out in Federal court, since this would be where the constitutionality (US) of the Virginia statute would be decided.

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