It’s been less than 48 hours since Attorney General Herring made his views known regarding Virginia’s marriage amendment to the state Constitution, and the bandwith dedicated to the reaction continues to grow. Outrage on the right can be seen across the blogosphere, including on this very blog . I freely acknowledge that mine is the minority view within Virginia Republicans, but I hold to it nonetheless: Mark Herring was well within his mandate to do what he did.
There are some who claim Herring went beyond his reach in deciding the amendment conflicted with the federal constitution. I disagree. Herring’s oath (which Virginia Virtucon  was kind enough to reproduce – albeit in a far different conclusion than my own) makes clear he has an obligation to both the Federal and the state constitutions. The question then becomes: which one should have priority? I would humbly submit that the answer is abundantly clear.
That leads to the next question: can Herring determine what parts of Virginia statute is (or isn’t) compatible with the federal constitution? I believe he is, and if this were a mere piece of legislation, there is precedent from previous (read: Republican) Attorneys General. While some would consider the state constitution to have more importance than legislation, I just don’t see it. Neither can stand up to the federal constitution, period.
Finally, what basis would Herring have for arguing (and this is an argument – the fellow actually deciding the issue is still a judge) that the state amendment would not pass federal muster? I would humbly submit the Supreme Court decision of 2013 – which did declare heterosexual-only marriage unconstitutional at a federal level – was ample evidence. None other that Justice Scalia himself (in his dissent) made clear how the Court viewed the issue; ironically, he actually criticized his fellow members for not blatantly saying so.
I will freely admit a few things here. Firstly, I do think adjusting and expanding marriage (for that is what same-sex-marriage advocates wish) would be beneficial; marriage has been badly bruised over the last several decades, and I do not think it is in a position to turn away those who wish to be a part of the institution (this, of course, is also a minority view, for now, among Virginia Republicans). Secondly, I have serious problems with the Virginia constitution of 1971, which in many cases could run afoul of property rights and religious expression (I’m thinking of Articles 10 and 11); thus I am happy to see the Attorney General make clear that the federal constitution is paramount, and I look forward to future Attorneys General applying this standard to the aforementioned problems within the 1971 document. Finally, I would note that had Herring chosen to defend the amendment, he would have also been within his rights to do so (although how he would have squared it with the aforementioned Supreme Court opinions would have been…interesting). Thus I can understand those who see the matter differently.
However, the voters put the Attorney General where he is, and thus gave him the power to decide how Virginia’s executive branch views her constitution. Bloggers don’t have that power. Legislators don’t have that power. Only Mark Herring does, and in my opinion, he used it properly.