January 23rd, 2014

Impatience: Virginia AG Mark Herring refuses to defend the state’s gay marriage ban

Mark Herring, Virginia’s newly-elected AG in a photo-finish race that featured a recount, will be joining the plaintiffs in lawsuits challenging the state’s ban on gay marriage. So not only is he declining to defend the state’s gay marriage ban, which was passed with 57% of the vote in 2006, but he is fighting to strike it down as unconstitutional.

You may recall my position on gay marriage: I believe bans are constitutional, and that the decision to allow gay marriage or ban it should be up to each state. So in a situation such as Virginia’s, it seems that if the people of Virginia wish to repeal the ban, the proper remedy would be to repeal the ban. And if the judiciary of Virginia thinks it is correct to declare the ban unconstitutional in the meantime, the proper remedy is to do so.

But until the people of Virginia officially declare otherwise, the proper role of AG Mark Herring would be to defend the law of Virginia in court, and therefore to work on behalf of defending the ban on gay marriage. If he wanted to declare it unconstitutional, he should have tried to become a judge. At the very least, he should have campaigned on the fact that he would be fighting the state’s gay marriage ban in court.

Republicans in the state seem to agree with me, not surprisingly:

“It took Mark Herring less than a month to decide he doesn’t want to be Attorney General. The first job of Virginia’s Attorney General is to be the Commonwealth’s law firm, and to defend the duly passed laws of Commonwealth,” said Republican Party of Virginia Chairman Pat Mullins.

To be fair, according to this article, Herring seems to have “stressed marriage equality as part of his campaign last year.” The article neglects to tell us what he actually said about it. Was it something general about gay rights, or did he promise to join the lawsuit against the ban? Somehow I doubt the latter.

The only other information I could find about Herring’s gay marriage promises during his campaign is from this article by David Weigel in Slate. Weigel, no fan of the gay marriage ban, approves of Herring’s actions, so it is probably true when Weigel writes that:

Gay marriage played no role in [Herring's] campaign; in fact, Herring voted against gay marriage when it came before the legislature.

Herring would also have us think he just changed his mind on this. But does anyone actually believe that? I can’t imagine that it’s true.

Weigel also mentions this poll taken last July, which shows support for same-sex marriage in Virginia standing at 50%, and the opposition to gay-marriage at 43%. If that poll represents reality, it certainly seems that Virginians may have been poised to (as Weigel points out) “wave in gay marriages.”

Okay, if they wished to do so. But if so, why wasn’t the amendment repealed? Apparently, the pro-gay marriage forces were too impatient to allow the process to work its way through in the way it should have, and too worried that it wouldn’t succeed:

State Sen. Adam Ebbin (D-30th) has introduced legislation [in late November, 2013] to start the ball rolling to repeal the state constitutional amendment defining marriage as between a man and a woman…

To repeal the 2006 amendment, legislation would have to pass the General Assembly two times with an intervening election, then would go on the ballot in the next succeeding general election. If it won first passage in the 2014 session, the measure would have to again pass the legislature in the 2016 session after the next state election, meaning the earliest the measure could go before voters would be November 2016.

Even gaining first passage in the General Assembly could be the longest of longshots, particularly in the House of Delegates. A companion bill to Ebbin’s has been introduced by Del. Joseph Morrissey (D-Richmond).

In the 2013 session, a similar measure by Del. Scott Surovell (D-Fairfax) failed to make it out of a House subcommittee. There was no companion bill in the state Senate.

When the marriage amendment was approved by the General Assembly in 2006, it passed on votes of 73-22 in the House of Delegates and 29-11 in the state Senate, winning support from a bipartisan mix of legislators. The six members of the Arlington legislative delegation at the time all voted against it.

Weigel doesn’t go into this background of how repeal might have worked, given enough time and support. Nor does any other article I’ve read so far about Herring’s recent decision not to defend the gay-marriage ban, by the way. But Weigel refers to it obliquely in the following manner:

So Virginia’s one of those states that’s probably ready to wave in gay marriages [according to the poll that showed 50% approving], but can’t, because an older and more conservative electorate locked and bolted the door.

“Locked and bolted the door”? I guess that’s how we now describe the usual, time-honored, amendment process—the same process by which the law was passed in the first place. The door isn’t “bolted” forever. It’s just that the pro-gay marriage forces know they don’t quite have the legislative support to unbolt it yet, and they don’t think there’s any reason they should have to wait to muster it. They are hoping that liberal judges—with the help of Virginia’s new AG, rather than his opposition—will do it for them.

[NOTE: This is somewhat akin to the history of Proposition 187 in California. If you're not familiar with it, please read.]

20 Responses to “Impatience: Virginia AG Mark Herring refuses to defend the state’s gay marriage ban”

  1. waitforit Says:

    Just a desire that you should have gone on to become a judge. You are a judge.

    You are smarter and more reasonable than most federal judges, and, I suppose, have alot of state judges as friends. Federal? I doubt, but maybe?

    You represent America’s counterpart or acceptance of Talmud intelligence. I just really wish we had alot more of you.

    When you’re gone, I don’t know what we’re going to do. You represent the last of the rationalists, people who are in short supply now. Reason itself has been degraded, and like religion, is only as good as the input. So I guess the hope is to restore the integrity of the input.

    Still, I find it comforting, that most of the best defenders of freedom are those who made a journey to freedom, because there is a host of those “striving to be free.”

  2. Geoffrey Britain Says:

    “Apparently, the pro-gay marriage forces were too impatient to allow the process to work its way through in the way it should have, and too worried that it wouldn’t succeed”

    That is exactly correct with the addendum that IMO, pro-gay marriage forces do not want to allow the people to have any say in the matter at all. They want to use judicial activism to force their view down the public’s throat because this isn’t about ‘marriage’ at all but about societal acceptance of homosexuality and any other sexual ‘orientation’, as just as valid as heterosexuality.

    Same-sex marriage is a vehicle to gain societal acceptance and approval.

  3. physics geek Says:

    I don’t care much for Weigel, but I’m glad that he’s telling people that Herring voted against gay marriage. I remembered him doing so and find his timely conversion to be somewhat suspect, although maybe a bit less suspect than how magical ballots appeared when it looked like he had lost the AG race.

  4. Sam L. Says:

    And Prop 208 or 209 in California.

  5. Don Carlos Says:

    Yawn. Wake me up if/when the VA Repubs do something besides yowl like a cat upon whose tail one has just trod. A cat with claws and teeth will do more than just yowl.

    Virginia is demographically increasingly similar to New York State. The DC burbs are the NYC of VA; Richmond is the Albany. The rest of VA, Charlottesville exempted, is like Upstate New York. And McAuliffe=Cuomo. Both are worms.

  6. Ray Says:

    Mark Herring is the Virginia version of Eric Holder. He will defend the laws he approves of and ignore the ones he doesn’t like. Being a typical lefty he has declared he is a morally superior person and by implication those who don’t agree with him are immoral. I think the homosexuals are attempting to normalize the abnormal.

  7. Mike Says:

    In CA prop 8 was not defended by JBrown because he thought it was unconstitutional. The lower courts agreed and struck it down. The problem came when those that wanted to defend it came up to the USSC. The “Supremes” found that they had no standing and dropped the case. The lower court ruling stood.
    This is the same problem we will have in VA. With this Ahole refusing to take action, no one will have standing to fight it. I’m all for impeaching this boob :-(

  8. BikerDad Says:

    First: The judges of the State of Virginia CANNOT strike down a Constitutional Amendment. Or at least I would sure as hell hope they can’t!! If they can, then there is NO LIMIT to judicial power.

    Second: Herring should be impeached immediately. In the likely event that the legislators of Virginia lack the cojones to do so, the citizenry should descend upon his office, lay hands upon his person, and tar and feather him. He swore an oath to UPHOLD the Virginia Constitution. He has publicly stated that he WILL NOT DO SO.

    If, after being tarred and feathered, Mr. Herring persists, the citizenry should once more lay hands upon him, and hang him, for treason.

    BTW, are there any folks in Virginia with the will to bring a Federal suit against Herring for his failure to abide by his oath of office, and a Bar complaint for the same? The Federal government is obligated under the US Constitution to “insure a republican government” or some such. Public officials refusing to carry out their duties would certainly qualify.

  9. BikerDad Says:

    Incidentally, the fact that the AG (or Governor) thinks a state CONSTITUTIONAL provision is “unconstitutional” under the Federal Constitution is as irrelevant as whether or not a defense attorney thinks his client is guilty as sin.

    They are still obligated by virtue of their office to do their damnedest in defending.

  10. tooth2power Says:

    Herring is a coward who lied when asked how he would defend the marriage amendment by stating over and over he had “.. voted for it 6 years ago” and defended his vote again in 2007…so he led ALL to believe he’d defend it…

    Not now.

    OMG – He NEVER would have won if he’d TOLD THE TRUTH ;- ) LOL !!!

    He wins by 160 votes and ABDICATES (like Gov. Brown in CA) his office’s responsibility to the state population and take care that the laws are FAITHFULLY EXECUTED.

    He’s another Obama clone = Picking and choosing which laws to follow or modify according to his whim.
    There is now NO RULE OF LAW in VA.

    Herring is another piece of banana republic tripe.

    His refusal to perform the duty which during his swearing in ceremony he swore to uphold is egregious and should he not change his mind will lead to his recall..

    How can anyone want a state representative to decide on a personal whim which laws to defend or not, when they are embedded in the constitution ?

    What is McAauliffe going to do?

  11. Cornhead Says:

    Here’s the solution. The legislature should hire private lawyers to defend the law and the deduct the bill from the AG’s budget.

    Better yet: charge the entire invoice against Herring’s salary. That will get his attention!

  12. Ymarsakar Says:

    The Left has been making some key tactical and strategic judgments, some of it rushed and lacking the proper logistics support.

    Not everyone can be Obama and the Golden Goose can only be strangled to produce so many eggs in a day.

  13. Matt_SE Says:

    Apart from questions of whether it’s wise or not, legalized gay marriage won’t be the final nail in the coffin of the US. If the left wants to waste time and energy in that fight, that’s up to them.

    The US is in triage mode now. The greatest threat is Obamacare; it goes first.

    If Roe v. Wade is any indication, passing laws through judicial activism doesn’t seem to be the last word as opposition continues to increase over time.

    It may just take a while for all the detriments of legalized gay marriage to become apparent.

  14. neo-neocon Says:


    Do you have a link for Herring saying that sort of dodgy answer when asked during the campaign? Because that’s exactly the sort of thing I was suspecting, but could find nothing like that when I was looking for it.

  15. KLSmith Says:

    glad i’m moving out of this blue state. bad enough va turned blue, but lawless is worse.
    also, dave weigel is gross. his haughty, jaded, cynical, snarky attitude turns me off. he’s fat and ugly, too. not to be mean or anything.

  16. parker Says:

    Lawlessness??? Who needs the stinking rule of law when we have the party of the messiah dictating what is best for all?

  17. ErisGuy Says:

    Never bet on a thrown fight.

  18. James Gannon Says:

    Herring has joined the Obama & Holder School of Law: Don’t enforce laws you don’t like. See my take on this at http://www.virginiafreecitizen.com

  19. Ymarsakar Says:

    Ringo or was it that other guy, wrote in a book that the President has de facto power to execute a number of people every year by executive order. All he has to do is to promise and enforce full pardons on anyone killing X person.

    There are enough crazies around that will gladly shoot em up if they know they will be pardoned.

    The number of executions per year by Presidential pardon and EO, is only limited by the number of pardons a President has and the number of assassins around.

  20. Richard Saunders Says:

    Votes? We don’t got no stinkin’ votes! We don’t NEED no stinkin’ votes!

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