Paul Goldman and I write about AG Mark Herring’s decision to oppose Virginia’s same-sex marriage law in the Washington Post. Is Virginia facing a constitutional crisis? No. Rather, it’s a case of old-fashioned political gymnastics:
During the 2013 campaign, Herring supporters knew that key swing voters questioned if he would defend the marriage ban. In justifying their endorsement, the Virginian Pilot wrote: “[Herring] has reversed his position on gay marriage, favoring repeal of the constitutional amendment that he supported in 2006. … He has noted that his job, if he is elected, would require him to try in good faith to find a basis to defend the amendment’s legality, a duty that he has pledged to fulfill.” (Emphasis added.)
But once safely elected, Herring said he could find no such “good-faith” defense. He didn’t know this two months ago? Former Virginia Attorney General Ken Cuccinelli told us he used the same “good faith” standard when he decided to defend the ban. Many scholars, and the only Supreme Court decision that’s directly on point, suggest this marriage issue is reserved for state law.
Back in 2006, when Virginia was preparing to vote on the marriage amendment, I wrote that I would vote “no” because the amendment struck me as repugnant, and a legalistic assault on my gay and lesbian friends. It still does.
But that does not give Herring a free pass. As Paul and I conclude:
Mr. Herring made a calculated political decision. In political shorthand, the electoral energy behind “gay rights” today eclipses “civil rights,” perhaps even “women’s rights,” in the Democratic Party. Lt. Gov. Ralph Northam had best take note for 2017.
No law prevents a politician from breaking his promise. But having the right to do it doesn’t make it the right thing to do.
