Less than two weeks ago, Attorney General Mark Herring swore to preserve, protect and defend the Constitution of Virginia. Apparently, he was crossing his fingers behind his back while taking the oath of office, for he now asserts that Virginia’s constitutional ban on same-sex marriage is…. unconstitutional. Not only that, but the AG’s office will not defend the state constitution in a case before U.S. District Court challenging the ban.
As state senator from Loudoun County in 2006, Herring had voted for the state amendment banning same-sex marriage. At some point since then, he had a change of heart. He just never bothered to tell voters, presumably because he thought it would hurt his run for the AG’s office. That was probably pretty shrewd thinking. Given the fact that he won by a razor-thin margin, hiding his intentions undoubtedly made his victory possible. It also speaks loudly about what kind of man Herring is, and what kind of AG he will be. (I say this, incidentally, as a blogger who has never written about Herring before and had formed no impression of him.)
There is a strong case to be made to allow same-sex marriages. Personally, I’m on the fence on the issue. I see the merits of both sides of the argument. As it happens, there is a very good way to reverse the constitutional prohibition — go through the same amendment process that voters previously went through to pass it.
Herring says that Virginia needs to be “on the right side of history.” Given the sea change in attitudes towards gay marriage, I expect that Virginia will reverse the constitutional ban eventually. But abandoning the AG’s role as upholder of the state constitution substitutes the rule of man for the rule of law. That is very much the “wrong side of history.”
Update: Actually, there may be legitimate issues regarding the duties of the Attorney General. I was surprised to see that those duties are not enumerated in the state constitution, which says, ” He shall perform such duties and receive such compensation as may be prescribed by law.”
Here is the oath of office, as stipulated in Virginia’s Constitution: “I do solemnly swear (or affirm) that I will support the Constitution of the United States, and the Constitution of the Commonwealth of Virginia, and that I will faithfully and impartially discharge all the duties incumbent upon me as ……………….., according to the best of my ability (so help me God).”
I suppose Herring could argue that in a case where the U.S. and state constitutions conflict, he can legitimately side with the U.S. constitution. It’s lame but at least it’s an argument.
Update: Paul Goldman illuminates the legal ethics of Herring’s obligations under the Rules of Professional Conduct applicable to all lawyers: “These Virginia Supreme Court sanctioned rules prohibit a lawyer from unilaterally taking any action materially adverse to a former client. That at least is the plain reading. What could be more materially adverse than having your former lawyer use his prestige and taxpayer funding to defeat you?”
— JAB