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.]