On Monday afternoon, the House of Delegates passed a bill by a vote of 65-32 that would give legislators "standing" in federal court to defend the laws of the Commonwealth not defended by the attorney general. The bill, HB 706, patroned by Delegate Todd Gilbert (R-15, Woodstock), was introduced well before the unprecedented decision by Attorney General Mark Herring to not only not defend Virginia's Marriage Amendment, but to join the case in opposition to the commonwealth. During floor debate, Democrats continued to misrepresent Attorney General Herring's actions, claiming that it is similar to that of former Attorneys General who did not defend a state law. But in those cases, as is customary in Virginia, the attorneys general in question appointed outside counsel to represent the state; otherwise, the governor appointed counsel. The Code of Virginia allows the attorney general to refuse to defend a law where there is a conflict of interest or economic considerations, and is not unusual.
What is unusual is an attorney general who refuses to defend the state constitution, refuses to appoint outside counsel and, further, joins the case in opposition to the constitution. That's unprecedented. Since Governor Terry McAuliffe refuses to act as well, Virginians are without statewide counsel. It's akin to a defense attorney refusing to defend his client and, instead, walks across the aisle and joins the prosecutor. It's dereliction of duty, purposefully negligent and unethical.
No Democrat during the debate, or anyone anywhere for that matter, has yet pointed to a case where this has ever happened. House Democrats refused even to acknowledge a difference between not defending a law and joining the plaintiff's lawsuit against the commonwealth.
Joining the Democrats in misrepresenting the actions of Attorney General Herring are most of Virginia's newspaper editorial boards. The lack of objective and clear reporting on the issue reveals not simply partisanship, but a pathological obsession with advancing the cause of same-sex marriage at any cost. Apparently, attacking Virginians as hateful bigots simply because they believe that marriage should be reserved for a man and a woman for the benefit of children isn't enough; secular liberals in office and on the editorial pages have to lie about anything related to the issue as well.
Luckily, some are standing up for the rule of law. A Washington Post op-ed from Colorado Attorney General John W. Suthers makes a compelling case for attorneys general defending laws they view as unjust because in their role as chief legal officer of states, they shouldn't have "litigation veto" over laws legally adopted.
Mark Herring: Upholds his hand, but not the Virginia Constitution.