In an unprecedented decision with long-reaching consequences for the rule of law, and within days of swearing to defend the constitution and laws of Virginia, Attorney General Mark Herring has broken his oath by not just refusing to defend Virginia's marriage amendment, but joining the case in opposition to the constitution. He won't even appoint outside counsel to defend the commonwealth as is the procedure when an attorney general cites some type of conflict.
As attorney general, Mark Herring's primary duty is to defend the laws of the commonwealth. Courts have long ruled that laws of the commonwealth are presumed constitutional until determined otherwise through a judicial proceeding. That means the burden is on the person challenging the law to demonstrate that it is unconstitutional. Attorney General Herring is flipping that long-settled legal precedent on its head by not only refusing to defend the marriage amendment, which is presumed by courts to be constitutional, but to affirmatively challenge its constitutionality.
Attorney General Herring points to his predecessor's decision not to defend the constitutionality of a state law passed last year as precedent for his action. But there are significant differences between the cases. Former Attorney General Ken Cuccinelli did not affirmatively challenge the constitutionality of the law and second, he appointed outside counsel to defend the law on behalf of Virginia, as is customary when an attorney general either objects to the law, has a conflict, or the Office of Attorney General lacks expertise in the matter under review. Virginia law takes into account that there may be times where it is not practical or economical for the attorney general to defend the laws of the commonwealth. In those circumstances, Virginia Code §2.2-510 authorizes the attorney general to appoint outside counsel.
Instead, Attorney General Herring unilaterally decided — "after conversations with friends and family" — that Virginia's constitutional amendment defining marriage is unconstitutional. He said he also based his decision on last summer's Supreme Court rulings regarding marriage, but neither of those rulings invalidated state marriage amendments. Simply put, the attorney general of Virginia has no constitutional authority to determine for himself that a law or amendment is unconstitutional. That is for the courts to decide.
His decision today disenfranchised more than one million Virginians who legally voted for the Marriage Amendment in 2006, and left them unable to defend themselves in court.
The decision by the Attorney General Herring is not surprising, but it is disappointing and frightening. It's disappointing that he wouldn't be clear about his intentions on this issue while campaigning for the office. More importantly, it's frightening that politicians such as Attorney General Herring feel that they can pick and choose which aspects of the constitution they deem worthy to defend and apply. Whether one agrees with the Marriage Amendment or not, the idea that more than a million Virginia citizens can be left defenseless by the attorney general after legally voting for an amendment that he himself supported is chilling.
ACTION: Contact Attorney General Herring and ask him to defend the Virginia Constitution or, if he is unwilling to do so, that he appoint outside counsel to defend the law.
Call his office at (804) 786-2071