Mark Herring, Virginia’s new Attorney General, declared yesterday, as I noted in passing, that he will no longer defend the state’s same-sex marriage ban:
Lyle Denniston observes that this is “the first time that the top legal officer in a state in the South had begun supporting same-sex marriage under the Constitution.” What happens to the case challenging Virginia’s ban:
While the constitutional challenge goes forward, Herring said, state officials responsible for enforcing it will continue to do so, and its validity will be defended in court by private lawyers for county clerks in Norfolk and Prince William County. Those clerks would have a legal right to appeal if the ban were struck down, he added. Herring said that he and other state officials will continue to work to ensure that the case moves forward to a final decision as “a fair and proper vehicle” for the constitutional test.
Weigel looks at how Virginia has changed since it passed its ban:
In 2006, 57 percent of Virginia voters approved the Marshall-Newman Amendment, adding the definition to their Constitution. Since then, lots of Virginians have, like Herring, changed their minds. As of six months ago, only 43 percent of Virginians opposed gay marriage—a 14-point swing. So Virginia’s one of those states that’s probably ready to wave in gay marriages, but can’t, because an older and more conservative electorate locked and bolted the door. Back in 2006, this was seen as a boon for Republicans. And now it’s left Republicans defending a pretty unpopular position.
Dreher is disturbed:
Whether you are for or against gay marriage, it ought to bother you that a state attorney general asserts a right not to defend the state constitution. What if a majority of Virginia voters had approved same-sex marriage, but Mark Herring were a gay-marriage opponent, and refused to defend the law against a court challenge from marriage traditionalists?
Josh Israel finds precedents:
Herring’s immediate predecessor, Ken Cuccinelli II, also refused to defend laws he deemed unconstitutional. Last year, one of his spokesmen noted, “If the attorney general’s analysis shows that a law is unconstitutional, he has a legal obligation to not defend it.” Indeed in 2009, Cuccinelli himself said in a debate, “I will not defend what I, in my judgment, deem to be an unconstitutional law.” “If I determine it not to be constitutional,” he explained then, “I will not defend it. My first obligation is to the Constitution and the people of Virginia.”
The Dish 