RICHMOND, Va. — Virginia’s new attorney general announced Jan. 23 that he will not uphold the commonwealth’s constitutional definition of marriage and instead will join same-sex "marriage" proponents seeking to override the amendment in federal court.
Virginia Attorney General Mark Herring filed legal papers in support of one of two legal challenges to a constitutional amendment approved by 57% of voters in 2006, which defines marriage as the union of a man and a woman.
"I swore an oath to both the United States Constitution and the Virginia Constitution. After thorough legal review, I have now concluded that Virginia’s ban on marriage between same-sex couples violates the Fourteenth Amendment of the U.S. Constitution," Herring stated in a news release.
The newly elected Democratic attorney general based his argument on the grounds that "marriage is a fundamental right being denied to some Virginians," and the amendment "unlawfully discriminates on the basis of both sexual orientation and gender."
Herring added that the clerks of the circuit courts of Norfolk and Prince William Counties have both legal standing and "well-qualified counsel" to carry on the defense of Virginia’s marriage amendment, but without his help.
Herring’s move came just days before oral arguments were scheduled for Jan. 30 in the Bostic v. Rainey case, a federal lawsuit that challenges the constitutionality of Virginia’s marriage amendment. The case is being argued by Ted Olson and David Boies, the lawyers who successfully challenged California’s constitutional amendment defining marriage as the union of a man and a woman.
Attorneys with the American Civil Liberties Union (ACLU) and Lambda Legal Defense welcomed the attorney general’s change of sides "as a critical and important development," saying they expected he would file legal papers supporting their similar lawsuit in Harris v. McDonnell.
"With the attorney general on our side, we hope that we can soon count Virginia among the 17 other states where same-sex couples have the freedom to marry," said Amanda Goad, staff attorney with the ACLU Lesbian, Gay, Bisexual and Transgender Project.
However, Peter Sprigg, a senior policy analyst with the Family Research Council, said that Herring’s decision might harm same-sex "marriage" advocates’ chances that this particular challenge to Virginia’s marriage amendment would lead to a sweeping national redefinition of marriage.
"They will not get that unless and until [the U.S. Supreme Court] gets a case where one of these amendments has been vigorously defended by the state itself," he said.
Sprigg pointed to last June’s Prop. 8 decision, where the U.S. Supreme Court refused to rule on California’s marriage amendment because it deemed only the state, not the amendment’s backers, had the legal standing to defend the California Constitution.
The Catholic bishops of Virginia reacted strongly against Herring’s decision on both legal and moral grounds.
"Virginia voters put this provision in the [state] Constitution, and no politician should be able to reverse the people’s decision," said Bishop Paul Loverde of the Diocese of Arlington and Bishop Francis DiLorenzo of the Diocese of Richmond in a joint statement. "We call on the attorney general to do the job he was elected to perform, which is to defend the state laws he agrees with, as well as those state laws with which he personally disagrees."
The bishops added that Virginia’s voters recognized that marriage as the union of a man and a woman is "an institution whose original design predates all governments and religions."
"The government of the Commonwealth of Virginia should preserve and defend this original design," they said, "because the constituent majority that supported the constitutional amendment understands the unique benefit that marriage between a man and a woman provides to individual families and society at large."
The Catechism of the Catholic Church states the "matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life, is by its nature ordered toward the good of the spouses and the procreation and education of offspring" (1601).
But Herring’s brief on the state’s change of position rejected "the rationale [which] reduces the institution of marriage to an instrument for ‘responsibly’ breeding ‘natural’ offspring."
The attorney general stated that marriage was fundamentally "an enduring union between two people." He cited the U.S. Supreme Court’s 1968 ruling in Griswold v. Connecticut, which declared states could not block the sale of contraceptives to married couples and described marriage as "a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred."
Pattern of ‘Lawlessness’
Brian Brown, president of the National Organization for Marriage, said Herring was following an increasing pattern of "lawlessness" set in motion by courts and attorneys general in which "those tasked with upholding the law are breaking it."
He pointed to the "legal quagmire" in Utah, where a federal judge threw out the state’s marriage amendment and ordered that same-sex couples be given marriage licenses immediately, without waiting for the appeals process to resolve the case. The U.S. Supreme Court finally intervened and issued a stay on same-sex "marriages" being contracted in the state, but by then, 1,300 same-sex couples had obtained Utah marriage licenses. U.S. Attorney General Eric Holder then announced that the federal government would recognize those same-sex unions as marriages for federal purposes, even though the state of Utah contends they are not valid.
Brown said Herring’s decision not only to refuse to defend the Virginia Constitution, but to join in the lawsuit, was an "impeachable offense."
"The attorney general has to uphold the laws of the commonwealth, but especially the [state] constitution," he said. "Here, we have Mark Herring swearing to uphold the constitution, and then a few weeks later, he turns around and breaks that very oath."
Herring spokesman Michael Kelly, however, said that the attorney general "is sworn to support both the U.S. Constitution and Virginia Constitution, and when the two are in conflict, the U.S. Constitution has supremacy."
Kelly said Herring is involved in the case because he believes he is "obligated to fight a law that violates the constitutional rights of Virginians."
But Sprigg pointed out that neither the text of the U.S. Constitution nor Supreme Court precedent supports Herring’s assertion that the two constitutions are in conflict on marriage.
"The Supreme Court was invited to do that in last year’s California case, but they declined," he said.
"In the absence of the clear and explicit text of the U.S. Constitution and the absence of a controlling precedent from the U.S. Supreme Court, the attorney general has an obligation to continue his defense of Virginia law," he said.
The Family Research Council has advocated passage of the State Defense of Marriage Act, where federal law would respect how each state defines marriage. The National Organization for Marriage has made renewed calls for a constitutional amendment defining marriage as the union of a man and a woman.
Brown said people on both sides of the "critical" marriage debate should be alarmed by the bigger picture, where the political preferences of the state’s executive officers determine which part of the state’s laws or constitution gets a vigorous defense in court.
"If that is your form of government, there is no sense in calling yourself a republic or a democracy," Brown said. "What you’ve done is given the executive branch the tyrannical authority to decide which laws they will defend and which laws they’ll not defend. In so doing, they essentially nullify any law they don’t like, and that is what is happening here."