By Casey Given
Last week, Virginia Attorney General Mark Herring made waves by announcing he would not enforce the Commonwealth’s ban on gay marriage, concluding that the state constitutional amendment violated the U.S. Constitution. Moreover, Herring announced that the state will join a federal lawsuit on behalf of two gay couples who are challenging the law, claiming it was time for Virginia to be on the “right side of history.” As Politico explains:
He pointed to the state and some of its counties being on the losing side of landmark cases like Brown v. Board of Education, which ended school segregation on the basis of race; Loving v. Virginia, which struck down a ban on interracial marriage; and United States v. Virginia, which held that female applicants must be admitted to Virginia Military Institute along with males.
Naturally, Herring’s announcement roused a predictable outcry from many of the state’s so-called conservatives. Republican House Speaker William J. Howell raised concerns about “the dangerous precedent” Herring’s decision “sets with regard to the rule of law,” noting that “The Attorney General has a constitutional and statutory obligation to enforce and defend the duly adopted laws and Constitution of Virginia.” The National Organization for Marriage even called for his impeachment.
This outrage, unfortunately, rests on a complete misunderstanding of the law. Yes, AGs have the duty to see that their state’s constitution and statutes are enforced and defended. However, this duty does not necessarily require the AG’s office to defend the case. They can delegate it to other private or governmental parties. As Gov. Terry McAuliffe explained in a letter responding to Del. Robert G. Marshall’s request for a special prosecutor:
I share your view that the effective administration of our legal system requires zealous advocacy on all matters before the courts. In the present case, Virginia’s same-sex marriage ban is being vigorously and appropriately defended by the Clerk of Court for the City of Norfolk and the Clerk of Court for Prince William County
Herring’s decision is by no means unprecedented. Pennsylvania’s Attorney General Kathleen Kane announced last summer that the state will not defend her state’s anti-gay law either. California refused to defend Proposition 8 all throughout its federal appeals up to the Supreme Court, deferring to a private party.
Critics of Herring’s decision may point out that the Supreme Court dismissed California’s Prop 8 appeal, ruling that private parties cannot stand in for the state in federal appeals. But, Virginia’s appeal is ultimately still being defending by the state, albeit not the Attorney General’s office. As such, Herring is not neglecting his duties to the Commonwealth whatsoever. Rather, given the recent Circuit Court decisions in Oklahoma and Utah striking down state marriage bans, it seems shrewd for the state to finally take a stand on the right side of history while still preserving the rule of law through a vigorous defense.