Noteworthy, although not because it’s novel. This is basically the same move Holder made three years ago in declaring that he and Obama would take the position in court that Section 3 of DOMA required “heightened scrutiny” under the Equal Protection Clause, which is a fancy way of saying that they thought the law was unconstitutional and should be struck down. It’s unusual for an AG to refuse to defend a statute in his jurisdiction, but not unheard of. Because the U.S. Constitution is the supreme law of the land, a prosecutor’s good-faith belief that a statute conflicts with it would/should lead him to oppose it. Ken Cuccinelli, in fact, refused to defend one of Bob McDonnell’s education reforms because he believed it violated the Virginia Constitution.
What makes this novel is the political position that Mark Herring’s in. He won the election for AG in November by less than a thousand votes. He was sworn in less than two weeks ago. He did note on the trail, as virtually all Democrats these days do and must, that he now supports gay marriage (he mentioned it as recently as five days before the election), but he’d voted against the practice as a legislator years before. There was every reason to think that, when presented with a searingly divisive issue after an excruciatingly close election, he’d want to lie low. Nope. The state will still enforce the ban on SSM until a court tells it otherwise, he says — that’s his concession to SSM opponents and jittery Democrats who fear a backlash from elected officials summarily overturning state law — but he’s going to do whatever he can to get a court to make that determination. Makes me wonder when that next step will be taken, where an AG who’s pro-SSM is elected in a state that’s trending the same way but still has a traditional marriage law on the books and he decides that he’s simply not going to enforce the law at all. If some Democrats don’t get the result they want in court fast enough, they might resort to measures like that.
Virginia Republicans are unhappy:
“By running for the office, Mark Herring asked for the challenge of defending Virginia’s constitution and all it contains,” Republican Party of Virginia Chairman Pat Mullins said in a statement.
“If Mark Herring doesn’t want to defend this case, he should resign, and let the General Assembly appoint someone who will. Mark Herring owes the people of Virginia no less,” he added…
“This lawlessness is an insult to the voters of Virginia who approved the marriage amendment by a large majority,” said Tony Perkins, president of the Family Research Council. “The ‘left’ is becoming a law unto itself.”
Schwarzenegger and his state AG at the time, Jerry Brown, refused to defend Prop 8 even though it had been passed by popular referendum because they too thought the statute was unconstitutional. Lefty law prof Erwin Chemerinsky, while opposed to Prop 8, wrote at the time that he found it “disturbing” that a majority of California voters could be deprived of a state attorney to defend a law they enacted simply because of a difference of opinion with their leaders over the law’s constitutionality. He proposed having states pass laws to enable the governor to appoint a special attorney to defend a statute in cases where the AG feels, in good faith, that he can’t. A solution for Virginia?
One other note here: The case in which the Supreme Court struck down laws against interracial marriage, which has been cited in many a brief ever since as a reason to strike down gay-marriage bans as well, originated in Virginia. Herring is, of course, aware of that. Maybe that’s why he moved so quickly on this — if Virginia’s law ends up being the one the Supremes use for the landmark “gay marriage is now legal” decision that everyone knows is coming, the political symbolism would make Herring a star and set him up to succeed McAuliffe as governor.