Attorney General Mark Herring has decided his office will not defend Virginia’s constitutional amendment banning gay marriage and will, instead,fight to have it overturned in federal court:
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.
As the story notes, Herring voted for the amendment while he was a legislator, but has since changed his mind. The piece also notes that Republicans have introduced legislation (HB 706) that would give members standing to defend Virginia laws if “the Governor and Attorney General choose not to defend the law.”
A couple of weeks ago, Scott Lee asked House majority leader Kirk Cox on WRVA about a sleeper issue we should be aware of in this General Assembly session. Cox mentioned this bill, patroned by Del. Todd Gilbert. Cox said:
We’re obviously concerned with some of the more good, conservative bills that we have passed we have passed the last few years, or even constitutional amendments, and one would be the marriage amendment, is [Herring] going to defend those? So Todd Gilbert is looking at basically allowing the legislature to have standing to defend some of those types of actions. That will be an interesting bill.
And it becomes a lot more interesting to the GOP today.
Update
My occasional writing partner Paul Goldman wonder if Mr. Herring is breaking the law by taking the plaintiff’s side against the marriage ban:
The AG’s courtroom role in defending state law is prescribed therein. He has the right to refuse to defend a law a law provided he takes appropriate steps to insure any General Assembly interest – as representatives for the people – in upholding their handiwork is properly represented in court.
However, Mr. Herring is going further by affirmatively joining the side advocating in court against the constitutional provision in question. He is using state funds to do it. That he uses the “friend of the court” brief approach is no loophole.
