Bacon's Rebellion

Democracy Thrives in Sunlight

A Movement to Impeach Mark Herring?

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by

James A. Bacon
in

Is the Virginia state constitution... unconstitutional?
Is the Virginia state constitution… unconstitutional?

Oh, my, it didn’t take long for Virginia’s new attorney general to spark a constitutional crisis. Bearing Drift has published the draft of a resolution, under consideration by two unnamed General Assembly delegates, to impeach Mark Herring for refusing to defend a provision of the state constitution. Read the resolution here.

Money quote: “The nature of General Herring’s neglect of duty is not only unprecedented, but is a danger to all Virginians because without adherence to the paramount law that governs the government of Virginia, all rights of Virginians are at the mercy of government unconstrained by the rule of law.”

Here is Herring’s explanation of why he changed Virginia’s legal position on Bostic v. Rainey, which asks federal courts to overturn the recent amendment to the state constitution banning gay marriage. Stated Herring:

“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 on two grounds: marriage is a fundamental right being denied to some Virginians, and the ban unlawfully discriminates on the basis of both sexual orientation and gender.”

— JAB

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24 responses to “A Movement to Impeach Mark Herring?”

  1. TMT Avatar
    TMT

    I think Paul Goldman’s explanation is more accurate. Herring tossed his honor and ethics to the wind for a lead in the 2017 Democratic race for Governor.

    The same provision also discriminates against polygamous marriages too. Indeed, Utah was not allowed to enter the Union until it amended its constitution to prohibit polygamy. Where is Herring on that discrimination? Oh, the Ds’ feminist caucus doesn’t like polygamy.

    Herring is well on the road to becoming the fastest political implosion in state history. But he still has the support of Hockstader and Hiatt. Their professional standards are about equal to Herring’s.

  2. NewVirginia Avatar
    NewVirginia

    Herring’s move is certainly shameful and contrary to his job as AG… in the short run. But he’s not stupid. He’s playing the long game. I am not defending Herring, nor am I necessarily in favor of gay marriage, but the facts are undeniable.

    In ten years, opposition to gay marriage will be politically untenable in the Commonwealth (some think it already is). In twenty years, it may be as politically repulsive as support for Virginia’s interracial marriage ban. The shift in public opinion is happening almost as quickly as that one did, but will probably be cushioned a little at the bottom by a more explicit religious rationale.

    And in twenty years, Mark doesn’t want to be the former attorney general who defended Virginia’s statute and is now giving the same sort of “it was the law I was supposed to uphold/culture was different back then” excuse of the lukewarm progressives of the civil rights era. History’s ideological victors never respect that argument, true though it may be. If gay marriage becomes the moral/civil rights imperative that its proponents want it to be (and that polls say it is fast becoming), Herring will be on his way to being a minor national hero.

    1. James A. Bacon Avatar
      James A. Bacon

      I see your political logic, but it doesn’t cut any mustard with me.

      Herring could have said, “I disagree with the amendment but it is my obligation as AG to represent the state in this matter. I will delegate that task to a subordinate. In the meantime, I urge legislators to consider enacting a constitutional amendment to appeal the previous amendment.”

      I would have respected that. I might even have agreed with it. As it is, I have no respect for Herring whatsoever. I hope the first impression doesn’t become a lasting impression.

  3. NewVirginia Avatar
    NewVirginia

    Search: “R.D. McIlwaine III”

    http://www.politicsdaily.com/2010/12/03/tom-editing-c-span-supreme-court-series-race-and-marriage/

  4. larryg Avatar
    larryg

    I still think a double standard is being used because Cucinelli did the same thing and there was no loss of “respect” for him …

    it’s okay to have a principle .. as long as you support it consistently…

    if you though Cucinelli was wrong – at the time .. and now for the same reason you think Herring is wrong.. then that’s a principled objection..

    but if Herring is being judged on a different standard than Cucinelli – then tha just illustrates, in my view, just more partisan politics.

    hold your position – regardless of whether the guy/gal is a D or an R…

  5. TMT Avatar
    TMT

    Cooch did not refuse to defend a constitutional amendment that passed two consecutive GAs and was approved by voters. And he did not challenge McDonald and the Commonwealth in court. Hell, Herring even voted for the very amendment he now says is unconstitutional. Did he think it was unconstitutional then and just vote for it based on the direction of the wind? Or did he change his mind now based on the switch in the wind? Either way, Herring’s conduct is reprehensible.

    And this is simply not refusing to defend the constitution. Herring is switching sides. Ethical requirements prohibit that. Did you read Paul Goldman’s remarks? Goldman is hardly a Tea Party member.

    I’ve lived in four states and followed law and politics since I was a kid. I’ve never seen anything like this. No Democrat or Republican has, for apparent political reasons, tossed out the ethics rules and spit in the face of voters and the legislature, by taking the other side of a state constitutional provision. Herring is off the map. He is not fit for his office. He should resign and let McAuliffe appoint a successor.

    The Post talks about Ted Olsen as US Solicitor General defending campaign finance limits as what should normally happen unless its for a key liberal issue. But this is not Olsen refusing to defend the law. This is the same as if Olsen challenged the law. This is the same as if Holder went to court to overturn the ACA. The liberals would crap their pants if Holder did something like that. But it’s fine for Herring to do the very same thing. No it is not. Herring’s conduct is simply wrong. He’s not fit to be attorney general.

  6. larryg Avatar
    larryg

    Herring is totally within the scope of his job. He is saying that Va law violates the rights of individuals AND that the SCOTUS is saying the same thing.

    this is nothing more than an double standard and partisan politics.

    it will fail.

    this will ultimately tar those who object as being on the wrong side of a human rights issue.. … as usual for those on the right who blather on about liberty and rights then bail out when it violates their own religious sensibilities.

    shame.

  7. Peter Galuszka Avatar
    Peter Galuszka

    “Herring could have said, “I disagree with the amendment but it is my obligation as AG to represent the state in this matter. I will delegate that task to a subordinate. In the meantime, I urge legislators to consider enacting a constitutional amendment to appeal the previous amendment.”

    Bacon, you are a real HOOT.

    Imagine it was the early 1950s. Would you have urged the state Atty. Gen. to defend Jim Crow? Just so long as you issue that cute disclaimer at the end?

    In the mid 1960s. would you have asked the state Atty. Gen. to go to bat to defend the state’s outrageous ban on interracial marriages that made husband and wife criminals?

    It’s ok, just so long as they follow hoity-toity little polite phrases.

    Where would be we be in Nazi Germany? “Gee, I think that the Holocaust is wrong, but as long as it’s the law and policy of the government, I urge the Reichstag to change it some day. Meanwhile, I will defend it.”

    I say let ’em try, just try to impeach Herring. Not only would it be morally wrong, you’d make every modern corporation with modern policies about LGBTs think twice about moving here and sharing its bucks that you and your ilk love so much.

    So much for “smart growth”, the “internet of things” and other neo-stuff you like so much.

    Virginia will like like its typically backward self.

    1. James A. Bacon Avatar
      James A. Bacon

      Peter said, “Where would be we be in Nazi Germany? ‘Gee, I think that the Holocaust is wrong, but as long as it’s the law and policy of the government, I urge the Reichstag to change it some day. Meanwhile, I will defend it.’”

      One way Nazi Germany became a dictatorship is that Hitler and his buddies decided they could pick and choose which laws of the Weimar Republic to enforce. That’s basically what you’re advocating here. Dispense with the rule of law in order to achieve a goal you want. Sooner or later the worm will turn and you’ll get a Sarah Palin, Ken Cuccinelli (pick your right-wing villain) in power, and you’ll be regretting the things you did for short-term tactical advantage.

  8. larryg Avatar
    larryg

    yup – take the Loving case.. those against Herring would be in the same group that wanted Virginia to oppose the Lovings….

    Conservatives are totally out of touch with the real world so they blather on about things like “impeachment”.

    I’d actually like to see it go forward… it would expose the Conservatives for what they are… backwards.. even as Peter points out they blather on about the “internet of things” and the awesome nature of technology… just don’t mess up my religious beliefs…or my views about birth control , etc…

    at some point, even the numskull voters are going to start to “get it” that we have a modern Luddite movement.

  9. DJRippert Avatar
    DJRippert

    Good. Impeach him. It’s time that the Imperial Clown Show in Richmond starts observing the Virginia Constitution.

    The US Supreme Court has not ruled on gay marriage. In fact, the US Supreme Court recently sent a case in Utah back to an appellate court on just this matter.

    The DOMA ruling did not ban constitutional amendments in the states against gay marriage. Read Scalia’s dissent. Or, read Slate’s legal correspondent’s view:

    “Then Scalia goes on to accuse the court of taking away from We the People the chance to continue this debate over marriage. But to do that, he has to skip ahead to a future ruling in which the court declares state bans on gay marriage unconstitutional throughout the land. Scalia says this is inevitable, and he shows why by crossing out “DOMA” and substituting “state law” in paragraphs from Kennedy that he reproduces. Look, I hope Scalia is right about how this will turn out. But it matters that the eventuality he predicts hasn’t happened yet.”

    No, it hasn’t happened yet. And slimy Mark Herring ought to stop claiming that he has the de-facto power of the US Supreme Court. He has no such power.

    However, the most galling aspect of Herring’s behavior was his total and complete silence on this matter during the election. I don’t see much of a difference between lying through commission and lying through omission. Herring lied through omission. He cannot be trusted.

  10. larryg Avatar
    larryg

    re: ” The DOMA ruling did not ban constitutional amendments in the states against gay marriage. Read Scalia’s dissent. Or, read Slate’s legal correspondent’s view:”

    This is like saying that when the SCOTUS found laws against mixed race marriage unconstitutional that Virginia’s law still was valid…until “officially” pronounced un-Constitutional.

    right?

    Scalia is about far right as you can get.. on things like marriage.. he has a dissent but it’s a reflection on him… not modern society.

    look at the polls for young people and ask yourself are you headed towards becoming a fossil?

    I’d be the first to admit I find the idea of same-sex marriage a bit repulsive but I also admit.. that it’s mired in an old way of thinking … much like racism was.

    it’s time to change.. perhaps if you don’t like the idea of same sex marriages, we treat everyone as single .. and don’t give preferences for “couples”.

    I always thought when I looked at the tax tables – that something was wrong with the way we were treating single people verses married.. why should they be treated differently for tax purposes and why shouldn’t the person who acts as your advocate in a hospital be who you choose?

    this is wrong.. we knew this.. and yet no one did anything to fix it.. and now we’re paying the piper…. either you defend preferential treatment for couples or you don’t..

    1. DJRippert Avatar
      DJRippert

      Read this …

      The US Supreme Court in Windsor decided that the federal government did not have a reason to block gay marriages. It did NOT rule on the equal protection clause. Until it does, state laws are not necessarily unconstitutional. When it does (and it is almost certainly a when rather than an if) Virginia’s law will fall. However, Mark Herring does not have the authority to accelerate the decisions of the US Supreme Court to match his desire to be seen in history as a leader. If he wanted that, he should have run for governor rather than Attorney General.

      http://www.washingtonpost.com/blogs/the-fix/wp/2013/06/26/will-the-doma-decision-kill-gay-marriage-bans/

  11. NewVirginia Avatar
    NewVirginia

    This debate sort of goes to illustrate the point I was making – namely that the “principle” these men will be judged on by history is not “whether they stood up for what they believed regardless of state law” or “whether they upheld state law when tasked with doing so.” The principle is what they did or didn’t do to support gay marriage (or whatever social issue has come to be viewed as morally right).

    In a sense, the debate we are having is one that only Southerners have ever cared about and will ever care about – the same sort of people who commend Robert E. Lee for defending his state even if he disagreed with its ideas – and condemn Abraham Lincoln for using illegal means to separate states and enforce his views.

    Most people don’t think that abstractly or procedurally about politics. They judge these men by one thing and one thing alone – did they work to protect or end slavery. The gay marriage proponents are the same way and most Americans will be too if they are as ultimately successful as they look like they might be. They are not applying a double standard to Ken and Mark – they are judging them both on one solitary, all-important standard: whether they are working in favor of gay marriage or not. That’s just how most people think.

    1. TMT Avatar
      TMT

      As a person who could vote for a law allowing gay and polygamous marriage with the right protections for religious institutions and individuals (the guy in Colorado who didn’t want to bake a cake for a gay couple) and as a lawyer, I’m also offended that the constitutional interpretation changes magically. New rights magically appear. It’s all so artificial and forced. Justice Douglas and his penumbras. It’s all bullshit and made up.

      I am not opposed to the law evolving. Times change. People’s attitudes change. As society changes, so too does its laws. I suspect that if the GA passed a new constitutional amendment repealing the restriction of marriage to one man and one woman, it would pass the voters. So why not let Mark Herring save us all this trouble?

      Because it is important to change laws and even the constitution. Those actions affirmatively demonstrate society has changed its mind. It was very important for the nation to adopt the 13th Amendment that declared slavery void forever forward. It was important to pass the 19th Amendment that gave women the right to vote forever going forward. Those and other similar amendments say “we’ve changed our views as a nation. What we permitted or forbad is now revoked. We have a new standard.”

      When judges use penumbras and emanations to change standards (as Douglas did to “find” a right of privacy), we lose a bit of what this nation is about -a free people governing themselves with the consent of the governed.

      When government merely follows the polls and views constitutions and laws as something that can be ignored, we can do some bad things too. FDR interned Japanese Americans; and Hitler killed the Jews. Herring is but a little man in job that calls for more than he can deliver – integrity.

  12. larryg Avatar
    larryg

    re: ” The principle is what they did or didn’t do to support gay marriage (or whatever social issue has come to be viewed as morally right).”

    do we remember who supported Loving or was opposed?

    I don’t think so….

    but I’m not understanding ” when govt follows polls”…

    did the SCOTUS follow polls on Loving?

    I don’t think so.

    they ruled on something simple – the Constitution…

    and that’s what they have done again.

    we’re sort of pretending like they did with Loving that the SCOTUS might not have meant “states” with regard to racially mixed marriage.

    I don’t think there is any doubt what the SCOTUS said…

    from that point on – we blame people who believe what the SCOTUS said applies to the law of the land including the states?

    We’re going to defend the State law and go in front of the SCOTUS and say what? that they were wrong about DOMA or that DOMA is not the same as state laws?

    Here’s the deal – how many States right now are in the process of changing their laws to conform to the intent of DOMA? a bunch, right?

    so Virginia is going to do what it did with Loving?

    come on. … why?

    what’s the purpose ?

    what will happen in the end?

    we’re going to impeach Herring because he see’s the end game?

    1. cpzilliacus Avatar
      cpzilliacus

      larryg wrote:

      do we remember who supported Loving or was opposed?

      Bernard S. “Bernie” Cohen, former member of the Virginia House of Delegates (D-46) (served 1980 to 1995) represented Mr. and Mrs. Loving before the U.S. Supreme Court.

      1. larryg Avatar
        larryg

        Indeed – Mary Washington University has a “Great Lives” series of lectures each January-April … they’ve had some of the principles before and again this year:

        The Loving Story: Oscar-Nominated, Tuesday, Feb 14
        January 16, 2012 by Charles Shields Leave a Comment

        On February 14, the same night that it premiers on HBO, the Chappell Great Lives Lecture Series will show clips from The Loving Story, with guests attorney Bernard Cohen, who was part of the ACLU team that represented the Lovings before the U.S. Supreme Court, and Peggy Fortune, the Lovings’ daughter.

        http://www.umw.edu/greatlives/2012/01/16/the-loving-story-movie-trailer/

        but does anyone remember who represented the State?

  13. LifeOnTheFallLine Avatar
    LifeOnTheFallLine

    Cuccinelli and Kilgore both opted not to defend laws they deemed unconstitutional and there was no uproar. People understand that the office holds a level of discretion. Cuccinelli goes out of his way to use state law in an attempt to ruin a man’s career and that’s okay. So it’s okay to use the discretion to afflict one person but not comfort many people? I guess we’re going to argue that the letter of the legal system is more important than the spirit.

    But homosexuality makes some people feel icky. So let’s argue about abstractions while the lives of real people are being impacted. It’s easy to take a “principled” stance when you can marry the person of your choice. If Cuccinelli and Kilgore were able to choose which laws to defend or not and that was found to be above board then the same should apply to Herring.

    1. DJRippert Avatar
      DJRippert

      I have been a long time supporter of gay rights. I voted against Virginia’s stupid marriage amendment in 2006 and I’d vote to repeal that amendment now. My support for gay rights has been public – I have made numerous comments on this very blog defending the right of gay couples to get married.

      Homosexuality does not make me feel icky. I have gay relatives, friends and colleagues. They were family members, friends and colleagues before they “came out” and nothing changed after they “came out”.

      Each case where an Attorney General refuses to defend a state law is somewhat unique. For example, Cuccinelli had no business defending Virginia’s sodomy law since an almost identical state law had been struck down by the US Supreme Court in Texas 10 years ago. Yet Cuccinelli steadfastly defended Virginia’s Crimes Against Nature Law. That was one (of many) reasons why I supported Terry McAuliffe for Governor – again, quite publicly.

      Herring does not have clear support from either the 4th Circuit Court of Appeals or the US Supreme Court for his action. He is grandstanding. Unfortunately, he was elected as a member of the executive branch of our state government to enforce the laws. He needs to do his job. If the US Supreme Court overtly strikes down a state constitutional amendment banning gay marriage I would agree that Herring has a basis to drop his defense of Virginia’s amendment. Until that happens he does not have the authority to act in lieu of the US Supreme Court.

      There is no “spirit” of the legal system until the US Supreme Court rules on a state ban. Or, preferably, the voters in Virginia repeal that stupid amendment.

      As for Herring’s grand vision of “being on the right side of history” – where was this thinking during the campaign? Where was Herring on the campaign trail just 3 months ago telling the voters that he would refuse to defend the state’s constitutional amendment? How many more secret plans does this typical Virginia politico – slimeball have in store for us? Does he anticipate a reversal on Heller and plan to round up gun owners in advance of that prediction?

      Law enforcement officials must follow the law – even if they don’t like the law.

      1. LifeOnTheFallLine Avatar
        LifeOnTheFallLine

        They must follow the laws they don’t like…except for previous AGs. Or did you take highly principled stances and demand the impeachment of Kilgore and Cuccinelli for refusing to defend state laws, too?

        We’ve clearly seen the AGs office comes with the discretion to pursue or not pursue, defend or not defend in the past. The immediate previous AG used that discretion to waste time and money going on a completely political fishing expedition against Michael Mann. But that was okay because at least he was using laws on the book and Big Daddy was trying to spank.

        And of course the legal system has its own spirit versus letter. It’s the diffrtence between a bill of rights and Hammurabi’s code. The spirit of our system is protective and inclusive. If it wasn’t Barack Obama would barely be able to find a state to vote in, much less become president.

        And how Loving isn’t allowable precedent is beyond me.

  14. larryg Avatar
    larryg

    re: ” Law enforcement officials must follow the law – even if they don’t like the law.”

    re: ” Cuccinelli had no business defending Virginia’s sodomy law since an almost identical state law had been struck down by the US Supreme Court in Texas 10 years ago.”

    Ok – so I will agree that DJ’s opposition is NOT partisan and IS based on principle since he really supports the right of same sex marriage.

    so two comments:

    1. DJ still seems to have two standards … where he seems to think that Cucinelli was wrong for defending a law… and should not have done so but he gives no such consideration to Herring… why?

    2. Of the opponents – how many are truly concerned primarily about the “rule of law” verses trying to use that as a obstruction/delaying tactic for something that is as inevitable as the Loving case?

    When I look at how Cucinelli conducted himself in office – including the McDonnell law he failed to defend – I do not see Herring veering outside the boundaries that Cucinelli was using.

    Finally, as per the Amicus brief – the AG has a responsibilities to defend the RIGHTS OF INDIVIDUALS … also…

    so if people’s individual rights are being violated, and there are existing court cases that have already made such a determination to that effect.. where does that leave the AG if he thinks people’s individual rights are being violated? The job of the AG is not only the law – it’s justice.

  15. Richard Avatar
    Richard

    Herring was using his discretion as Virginia’s attorney to do the right thing for the Commonwealth as he sees it. The Commonwealth is his client. Sometimes clients need to be saved from themselves and a good attorney will do that. Herring was elected to this position, and that gives him the authority to exercise discretion on behalf of Virginia. If Virginians don’t like what he does, they can get rid of him next election, but I doubt that will happen. In the meantime the Republicans, who bent over backwards to defend Cuccinelli’s antics, can talk all they want – they’ll just be digging a deeper ditch on a state-wide basis.

  16. johninva Avatar
    johninva

    A.G. Herring needs to be set an example of and be impeached and removed from office. The Homosexual Marriage is not about equity but about making America a society as was at Sodom and Gomorrah. The Democrats care nothing about the people but who funds their party and the Homosexuals are funding the Democrats with lot’s of cash.

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