Gay Marriage

Virginia AG Reverses State's Position on Gay Marriage Recognition Toward Support

Uses Cuccinelli's tactics in the office as justification


Yesterday, Virginia Attorney General Mark R. Herring's office filed an important notice in a lawsuit challenging the state's constitutional ban on gay marriage recognition. His office is reversing course under its new leadership. Herring has decided that the ban is a violation of the Fourteenth Amendment of the U.S. Constitution and "will not defend the constitutionality of those laws, will argue for their being declared unconstitutional, and will work to ensure both sides of the law are responsibly and vigorously briefed and argued before the courts to facilitate a decision on the merits, consistent with the rule of law." He added that his office will still enforce the ban during the challenge, so gay Virginians should not go rushing off to their county clerks' offices just yet.

Herring, a Democrat, acknowledged that he originally voted for this amendment himself when it was passed in 2006, but said in a press conference that he was wrong. Watch his comments below:


Herring noted Virginia's history of defending racial segregation in schools, laws against mixed-race marriages and expressed the desire to, for once, "be on the right side of history," a phrase that always used to baffle me but that I've now come to realize is just simply code for "The polls have shifted and I don't see them shifting back anytime soon."

Anyway, according to The Washington Post, some Republican lawmakers are looking around for a way to defend the law without Herring's support. Herring is also accused of hypocrisy for criticizing former Republican Attorney General Ken Cuccinelli as using the office for his own type of activism. Indeed, the petition submitted by Herring's office even uses Cuccinelli's refusal to defend a constitutional challenge to a law last year as a precedent for Herring's decision. Any attorney general candidate claiming to want to reduce the politicization or activism of the office should be laughed at in any event.

Meanwhile, also keep an eye on Indiana. Lawmakers there are trying to buck the current trend toward recognizing gay marriages. They are trying to put an amendment to the state's constitution before voters in November that would not only block recognition but also similar arrangements like civil unions.

NEXT: 46 Percent of Voters Would Vote For Their Representatives Again

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  1. This is all fun and games until some Democratic AG refuses to defend a shall issue law. If he doesn’t like the law, don’t be the AG. Since when does the AG and not the legislature and if challenged the Courts decide which laws are valid?

    1. In his judgment he can’t defend both this provision of the VA constitution and the US constitution at the same time, since he believes them to conflict, and of course the US constitution trumps. Ken Cucinnelli believed the AG had exactly these duties.

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      2. the US Constitution is silent on marriage, gay or otherwise, which some might see as meaning that fedzilla does not particularly give a shit who marries whom, or that the concept of gay marriage was not contemplated in the late 1700s.

        1. It’s not silent on equal protection of laws.

    2. What could go wrong with an unaccountable political class? We know they’ll always side with libertarians, forever.

    3. So if a state passed an amendment to their Constitution that said Blacks had to ride in the back of the bus, would you, as the AG, enforce it?

      1. Before the court? Yes. That is what we have courts for. If you say no, then it is not good enough for a law to be passed by the legislature and signed by the governor, it also has to be approved as legal by the AG. Last I looked no state had such a provision. If the AG believes he cannot ethically defend a law, he should resign.

        Beyond that, your analogy is not a valid one. There is right now no question whatsoever or split of authorities about if the Constitution prohibits a law like the one in your example. Gay marriage is nothing like that. There is a huge debate about whether gay marriage is in fact mandated by the constitution. It would be one thing for an AG to say “there is no credible or ethical argument that can be made to defend this law”. But that is not the case here. There are lots of credible and ethical arguments available to defend this law. And indeed, that is the job a lawyer to make reasonable and ethical arguments in court regardless of his personal opinion of them.

        The AG is paid to represent the state’s interests in court. As long as he can make arguments to do so within the ethical bounds of his role as an attorney, he has to do so. His personal opinion doesn’t matter.

          1. Did you not read the post? In your example, I probably wouldn’t. But my reasoning would be that the law is so without Constitutional merit that I cannot defend it within the ethical boundaries of being an attorney. I can’t as an attorney ethically make bad faith arguments to the court.

            Is the law in your example that bad? Probably. But whether it is or not is a different question. Regardless of what the answer to that issue is, there is no question that a law not recognizing gay marriage is not in the same class. The law on gay marriage is still undetermined. It can be argued either way within the ethical bounds of being an attorney. Therefore the AG’s duty as AG and duty to his client the state carries the day and he should be required to defend it.

            What about the above do you think is not true?

        1. I believe the rule in VA is that if the AG doesn’t want to defend a law, he has to make reasonable provisions so that the legislature’s interest is represented in court. Not sure how actively siding with the other side squares with that.

          1. If someone else defends the law, then this decision doesn’t matter. But at least in California, the AG was able to effectively shirk his duties and prevent the law from ever getting a proper hearing in court. That is unethical on the AG’s part.

        2. The AG is paid to represent the state’s interests in court.

          So, the state has an interest in defending, enforcing, etc. unconstitutional laws?

          To me, it comes down to every public official’s duty to defend and protect the Constitution. And, yes, that means that if your personal opinion is that a law is unconstitutionl, then you have a duty to, at a minimum, not defend it.

          Otherwise, you’re chust followink orders, nein?

  2. I salute the Gay community for seizing enough political power to protect themselves, but also to make all these little shits flip flop in public.

  3. So the guy just barely won election and during the election he did not mention his new found legal reasoning. Did he suddenly figure this out during the month between election and assuming office?

    1. He campaigned on this and was attacked by his opponent for refusing to defend the constitutionality of the gay marriage ban.

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      2. No he did not campaign on this issue, he refused to say. That is why its big news now.

  4. I wonder if that R in his name is short for Red.

  5. I almost responded to the troll, but restrained myself.


    1. He is right that Cucinnelli took the same position, i.e. that he didn’t have to defend laws that he believed to be unconstitutional. I understand the concern here but I also don’t think that politicians should have to defend/enforce unconstitutional laws.

      1. Politicians DON’T “have” to defend/enforce unconstitutional laws (see below). But that’s not what this is about – he’s a lying, dissembling, misleading sack of shit, and if he’d have put this position out there during the election, he’d likely have lost (ot was decided by something like900 votes out of a couple million).

        He supported the law, voted for it, never opposed it…till now. What a fuckstick. If it were a principled defense based on X, Y, Z in the constitution, fine. But it’s not.

        And “BUT BUSH COOCH DID IT” is no defense.

        1. He did put this position out there during the campaign.

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      2. What is an “unconstitutional law”? One the AG thinks is unconstitutional?

        See my point above. He is the state’s lawyer. His job is to defend the state’s interests. Unless a law is so bad that defending it would require him to breath his ethical duty as an attorney, he has to defend the law. That is what lawyers do. You don’t tell your client, “well I will take your money but I don’t like your position and thus and going to agree with the other litigant once I get to court”.

        1. This is the problem with lawyers. They think you need a law degree to be able to read.

          No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

          The meaning here, your honor, is you don’t get to treat people differently, under the law, because you don’t approve of them.

          1. Principles used to matter. Now that Lady Justice has removed her blindfold, only principals matter.

          2. I think it’s people with law degrees who come up with elaborate rationales for why the 14th Amendment, a century after ratification, suddenly means something nobody conceived that it meant before.

            1. I can just imagine John Bingham, Thad Stevens and Charles Sumner getting together and saying, “you know what we need? A constitutional amendment forcing states to recognize same-sex marriage!”

            2. “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

              Doesn’t say anything about which laws. The intent is pretty clear.

              1. It’s so clear that it took a century for anyone to suspect the true meaning.

                1. That’s the beauty of a well-crafted constitutional provision. It doesn’t become obsolete as society evolves.

            3. I think it’s people with law degrees who come up with elaborate rationales for why the 14th Amendment, a century after ratification, suddenly means something nobody conceived that it meant before.

              It means EXACTLY what it says.

              Just because it was written to apply to blacks doesn’t mean it wasn’t written to protect groups yet unforeseen. That’s the thing with principles…they apply to everyone, whether you like them or not.

          3. That is a profoundly stupid response and really disapointing coming from you. All you are doing is begging the question. You think that is means state guarenteed gay marriage. A lot of other people don’t think that. Who is right? That is a different question. The question here is can the statute be defended. And the answer is clearly yes.

            And you know it. And you know good and well that you would have a stroke if a state AG refused to defend a law you liked. You only act stupid here because there is apparently no principle of law or justice you won’t sacrifice to get your way. And that frankly is pretty sad. I never figured you had such a primitive mind.

            That is the difference between a civilized man and a primitive. Primitives see only the material issue in front of them. Civilized men see larger principles and understand that getting what you want now can have bad effects down the road. You might want to rethink your primitiveness.

            1. You think that is means state guarenteed [sic] gay marriage.

              Well, I don’t know, your honor, is marriage a privilege extended by the state to certain groups of people? And is not allowing those nasty homos to get married abridging said privileges?


              And you know good and well that you would have a stroke if a state AG refused to defend a law you liked.

              Nonsense. My liking a law has no bearing on its constitutionality. E.g. I like that the government funds the USAF. That said, it should stop until the Constitution is amended to allow it.

              I realize it’s hard for you to apply principles, being both a Republican AND a lawyer.

              (Apologies to any other lawyers in the room, I couldn’t help myself.)

              1. I realize it’s hard for you to apply principles, being both a Republican AND a lawyer.

                Your projection is strong. The legislature and ultimately the courts decide what is constitutional and not. The state AG does not do that.

                Nonsense. My liking a law has no bearing on its constitutionality. E

                Yes it does. You are just substituting the two words. The point is that you think this law is unconstitutional. Well good for you. Other people disagree. We settle these conflicts by litigating them before courts. We don’t settle them via the single opinion of an AG. If you don’t like defending laws you don’t agree with or think might be unconstitutional, don’t become an AG.

                I am profoundly disappointed that you, normally one of the better members of this board, could turn out to be such an unprincipled fool on this issue.

                1. There is nothing to disagree on. Virginia’s amendment denies legal privileges to one group and not another. It’s not that your argument is wrong. It’s that you have no argument. Words have meaning John, you don’t get to redefine them to fit your purposes.

                  You should sue the AG, claiming you were harmed by him not enforcing an unconstitutional law.

                  Just think of how you are harmed. There will be gayz getting married in the streets. PANDEMONIUM! ANARCHY!

        2. Agreed re laws approved directly by the people of VA. Not sure re laws approved merely by the legislature, not so sure they count as the people and giving the executive a broad mandate (albeit with exceptions) to defend legislators’ handiwork in all cases could violate the separation of powers.

          The AG’s filing doesn’t seem to make this distinction.

  6. Also, this is an utterly political move that has nothing to do with “I can’t defend it because I don’t believe it’s defensible.” I know, shocker.

    Still – I’d have no issue if it were truly a question of, “I thought it was OK when I voted for it, but, upon further reflection, I can’t because of X, Y, Z reasons…” He’s implying that’s what it is, but it’s not – cause if that were the reason, he’d just stand down.

    The fact that he’s making it a spectacle….well, this is why I fucking hate politicians and quit voting in national elections. I still have a smidgen of hope at a state and local level…

  7. …former Attorney General Kenneth T. Cuccinelli, II, declined to defend a constitutional challenge to the law establishing the Opportunity Educational Institution…

    Some history: the OEI’s mission is to take over failing schools and convert them to a charter. Pre-OEI, failing schools must submit action plans to school boards and nothing else happens. The teachers union sued to overturn the law creating the OEI. Cooch said he could not defend the OEI.…..21.pdf.pdf

    1. Cooch was wrong. I don’t see how that law is so bad you can’t make a good faith and ethical argument for it. Who the fuck is he to decide that a law is invalid?

      1. I’d like to see Herring defend the OEI against the various state education associations. I’d also like to see a unicorn shit rainbow sherbert.

          1. they do. they all do. just once, i’d like to see rainbow sherbert.

    2. Why would C take this position against school reform? Constitutional principle about autonomy of school boards?

      1. without embellishing, he cites:

        4. In cases where the Attorney General certifies to the Governor that it would be improper for the Attorney General’s office to render legal services due to a conflict of interests, or that he is unable to render certain legal services, the Governor may employ special counsel or other assistance to render such services as may be necessary.

        1. I noticed that part, but he didn’t give specific reasons.

  8. Herring’s brief talks about the AG being a fourth branch of govt to maintain the balance of power.


    1. Wow is right. I am appalled and disappointed that people on here would support this.

  9. Since what we now have is a collusive lawsuit rather than a genuine “case or controversy,” I trust the court will dismss it, right?

  10. Virginia Attorney General Mark R. Herring

    Please tell me his nickname is “Red”.

    1. “Pickled”, actually.


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