[1]They don’t call him “Red Herring” for nothing.
We knew what sort of radical leftist we were getting in Mark Herring. Little did anyone know that Herring would be showing his true colors so soon [2].
Attorney General Mark R. Herring says in a brief filed in federal court in Norfolk that marriage is a fundamental right and the ban is discriminatory.
Virginia, widely considered a battleground state in the nationwide fight to grant same-sex couples the right to wed, is siding with the plaintiffs who are seeking to have the ban struck down, a spokesman for Attorney General Mark Herring said in an email to The Associated Press.
“After a thorough legal review of the matter, Attorney General Herring has concluded that Virginia’s current ban is in violation of the U.S. constitution and he will not defend it,” spokesman Michael Kelly wrote.
Two weeks is more like it. Meanwhile, the reaction from Republicans and Democrats has been swift and damning. From Virginia Virtucon [3]:
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 ispart 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.
State Senator Mark Obenshain — who narrowly lost his bid for Attorney General in a recount — followed up with his serious concerns:
“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.”
…and that is really what this is about.
Herring has a constitutional duty — and swore an oath — to uphold the Virginia Constitution. If one does not agree with the laws of the Commonwealth, there is a process where one can change and alter those laws, and it runs through the Virginia General Assembly. To change by artificial fiat that process and have the Attorney General unilaterally decide which laws he will and will not uphold?
That’s horrifying. Moreover, it’s wrong. For Democrats gleefully slapping their hands together over this, what happens when say — a Republican Attorney General goes after Roe v. Wade in such a manner?
This current trend of might makes right vs. rule of law and process is terrifying in its implications. As for the Virginia Way lauded a mere two weeks ago [4]… after today’s action? It’s dead.
Meanwhile, now that Herring has violated his oath, rumors of articles of impeachment are already floating about. Too soon? Not hardly, given the dire implications of such an action. If it is to be Herring vs. the law, this is a sure means of some hero to rise up within the Republican ranks and resist — or if the Virginia Way still has a champion, a Democrat with a conscience to rise as well.
UDPATE: One Bearing Drift reader notes:
Take marriage out of it; today it’s this issue, tomorrow it could be one closer to home of another constituency, say, defending Virginia’s right-to-work laws.
Indeed.
This is not just an issue for social conservatives. Nor is it only an issue that has fiscal conservatives alarmed. Herring has just declared war on the Virginia Constitution.
UPDATE x2: D.J. Spiker addressed this very concern during the campaign. [5] With Herring drawing a line in the sand, what issue will be next for Herring to violate his oath of office?
In a deep profile piece on Democratic longshot for Attorney General, State Senator Mark Herring revealed his mistrust, distaste and flat out vitriol for Virginia voters today.
You may remember, Mark Herring has come out repeatedly against a number of positions that have been passed into Virginia law, including but not limited to:
– Virginia’s marriage constitutional amendment, passed by 57% of voters
– The recently passed Photo ID bill, supported by more than 75% of Virginians
– Right to work, supported by more than 60% of Virginians
– Solidifying property rights, passed by more than 75% of votersHerring has repeatedly put himself on the position of outside looking in when it comes to Virginia voters.
…
If we elect an Attorney General who arbitrarily decides whether or not a law is constitutional, despite being overwhelming passed in the General Assembly (property rights, 35-5) or in Virginia statewide (property rights, 76%), what’s the point in passing laws? What’s the point in passing constitutional amendments by voters?Mark Herring is declaring he knows better than you, than me, than the General Assembly, than all of Virginia.
And remember Herring’s repeated pledge/mantra during the campaign, to ‘remove politics from the Attorney General’s office.’
How’s that looking now?
UPDATE x3: The Virginia Catholic Conference is not amused [6]:
Bishop Paul S. Loverde of the Diocese of Arlington and Diocese of Richmond Bishop Francis X. DiLorenzo expressed extreme disappointment with the Attorney General’s decision and issued the following statement:
“Virginia voters put this provision in the Constitution, and no politician should be able to reverse the people’s decision. We call on the Attorney General to do the job he was elected to perform, which is to defend the state laws he agrees with, as well as those state laws with which he personally disagrees. We will continue to defend marriage between a man and a woman, an institution whose original design predates all governments and religions. The Government of the Commonwealth of Virginia should preserve and defend this original design because the constituent majority that supported the constitutional amendment understands the unique benefit that marriage between a man and a woman provides to individual families and society at large.”
There are a great many people taking exception, not with Herrings personal beliefs, but with the concept that a sitting Attorney General can refuse to defend the Virginia Constitution he swore to uphold just two weeks prior.
UPDATE x4:
In case anyone thought Herring was doing this anything but political purposes, the piggybacked fundraising letter he sent out should dispel the notion that he was acting out of principle or conviction.
Dear Friends,
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. I hope you will click here to stand with me and stand up for equality in Virginia.
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.
It does on from there but you get the gist. So much for principles.