Democrat Mark Herring pulled out a squeaker of a win last fall, narrowly besting Republican Mark Obenshain to become Virginia's attorney general. In October, the Washington Post endorsed Herring, then a state senator, insisting that Herring "would hew to the former Virginia tradition of offering restrained and responsible advice" to the governor and state agencies and by refusing to "[turn] the office into a platform for ideological crusades."
He's not even a month into the job, and yet Mr. Herring is set to do just that, announcing yesterday his intention to file a brief in federal court attacking the state's 2006 voter-approved constitutional definition of marriage as an institution consisting of one man and one woman. Although it's a stunning, bold-faced repudiation of his constitutional duty to defend the state constitution, you'd be hard-pressed to get that by reading Post court reporter Robert Barnes's coverage in Thursday's paper (emphasis mine):
Virginia Attorney General Mark R. Herring will announce Thursday that he believes the state’s ban on same-sex marriage is unconstitutional and that Virginia will join two same-sex couples in asking a federal court to strike it down, according to an official close to the attorney general with knowledge about the decision.
The action will mark a stunning reversal in the state’s legal position on same-sex marriage and is a result of November elections in which Democrats swept the state’s top offices. Herring’s predecessor, Republican Ken Cuccinelli II, adamantly opposes gay marriage and had vowed to defend Virginia’s constitutional amendment banning such unions, which was passed in 2006 with the support of 57 percent of voters.
Herring, too, had voted against same-sex marriage eight years ago, when he was a state senator. But he has said that his views have changed since then and that on Thursday he will file a supportive brief in a lawsuit in Norfolk that challenges the state’s ban, said two people familiar with his plans.
Herring will say that Virginia has been on the “wrong side” of landmark legal battles involving school desegregation, interracial marriage and single-sex education at the Virginia Military Institute, one official said. He will make the case that the commonwealth should be on the “right side of the law and history” in the battle over same-sex marriage.
He has not informed Republicans in Richmond about his plans; an uproar is likely. GOP lawmakers have worried that Herring would change the state’s position — such decisions are up to the attorney general — and have contemplated legislation that would allow them to defend the law in court.
The attorney general thinks that is unnecessary, the official said. The clerks of the circuit court in Norfolk and Prince William County are defendants in the suit, and both are represented by independent counsel.
Janet Rainey, the state registrar of vital records, is also a defendant. Although she and Herring will urge the court to strike down the ban, she will continue to enforce it until the courts act.
The move in Virginia is part of a quickly changing legal landscape reshaped by the Supreme Court’s rulings in two cases on same-sex marriage in June.
In one, U.S. v. Windsor, the court voted 5 to 4 to find unconstitutional a key part of the Defense of Marriage Act, which withheld federal recognition of same-sex marriages performed where they are legal and denied federal benefits to those in such unions.
In the other, it allowed to stand a federal judge’s opinion that California’s Proposition 8, which bans same-sex marriage, was unconstitutional. The court ruled that the case was not before it in a way that allowed a ruling on the merits.
The justices sidestepped a critical question: whether state bans on same-sex marriage violate the Constitution’s guarantees of equal protection and due process.
Yes, the justices sidestepped making a ruling that was much more comprehensive. As such, the Supreme Court has not ruled in a way that binds state officers from upholding and enforcing state definitions of marriage which don't allow for same-sex unions.
What's more, while Herring's personal views on the matter may have changed, Barnes failed to remind readers that same-sex marriage was not a contended issue in the 2013 attorney general's race nor did Herring publicly promise to challenge the constitutionality of the state constitutional provision when he was on the campaign trail. In short, Herring did not win by campaigning on the issue, so it's difficult for him or his acolytes to wrap themselves in the cloak of a popular mandate by virtue of Herring's victory.
In a follow-up story filed this afternoon online at WashingtonPost.com, Barnes and colleague Laura Vozzella did delve into Republican criticisms that Herring was derelict in his duty to uphold the state constitution:
Republicans reacted to the news swiftly Thursday by accusing Herring of failing to fulfill a central duty of his office — defending the state constitution.
“Not two weeks ago I watched the attorney general swear an oath before God and the people of Virginia to preserve, protect and defend our constitution,” Del. C. Todd Gilbert (R-Shenandoah) said. “It didn’t take him long to find a way out of that.”
In a statement, House Speaker William J. Howell (R-Stafford) said: “I am very concerned about his announcement today and the dangerous precedent it sets with regard to the rule of law. The Attorney General has a constitutional and statutory obligation to enforce and defend the duly adopted laws and Constitution of Virginia. This is not an obligation that can be taken lightly. The Attorney General’s decision today demonstrates a great deal of disregard for that obligation, as well as the legislative and democratic processes by which those laws are adopted.”
Vozzella and Barnes noted how Democrats point to an instance where Herring's predecessor, conservative Republican Ken Cuccinelli, had refused to back up the McDonnell administration in state court:
Democrats are sensitive to charges that it is Herring’s duty to defend Virginia’s law regardless of whether he agrees with it. They point out that Cuccinelli refused to defend one of then-Gov. Robert F. McDonnell’s education reforms in court, saying he believed that the legislation (for state takeovers of failing schools) was unconstitutional.
Of course, the analogy falls apart as, in that instance, Cuccinelli was taking a stand based on the state constitution and how Virginia courts had previously ruled on that policy area, whereas in this matter, Herring is blithely disregarding the express wording of the state constitution while clinging to the untested theory that the federal Constitution provides for a fundamental right of persons to marry another person of the same gender. Herring is free to personally believe as such, but the Supreme Court has not spoken to the matter.
Here's how the Virginia state constitution defines marriage:
That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions. This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.
The Virginia state constitution likewise holds that:
[A]ll power is vested in, and consequently derived from, the people, that magistrates are their trustees and servants, and at all times amenable to them.
Herring opponent Mark Obenshain, perhaps inspired by that, has argued that if the voters of Virginia want same-sex marriage, there are avenues to make that happen, but the attorney general turning his guns on the state constitution and neglecting to do the job he was elected to do is not good for all Virginians, regardless of their views on marriage.
Here's an excerpt of Obenshain's statement, as quoted at WCYB.com (emphasis mine):
"Virginians, like millions of others across the country, are engaged in a robust debate over marriage, one that speaks to an important unresolved constitutional issue. Here in Virginia, the state’s Marriage Amendment is a matter of perennial legislative debate, and that Amendment could well fall: the voters could repeal it or a court may strike it down. But it is emphatically not the role of the Attorney General to make that determination unilaterally, and that may well be the consequence of Attorney General Herring’s decision.
"Fair minded people disagree on the issue of gay marriage, but this is, fundamentally, about the rule of law and allowing the system to work. Whether the Marriage Amendment will survive court scrutiny is clearly an unresolved question, but our system of law does not work when one side of the argument fails to show up. It is manifestly the job of the Attorney General to defend the law and let it rise or fall on it merits in court."
As I noted at the open of this article, the Washington Post editorial board promised in Mr. Herring a non-ideological attorney general. He's clearly failed to live up to the bill, but you won't know that by reading the Post. Neither Barnes nor Vozzella made note of the Post's endorsement in their reporting either in print or online.
