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Free Lance-Star reporter Chelyen Davis covers Virginia government.

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Reaction mixed to Herring gay marriage announcement

New Attorney General Mark Herring is making major news in Richmond this morning with the announcement that he will not defend Virginia’s constitutional amendment that bans same-sex marriage, and in fact will file a brief supporting two same-sex couples challenging the ban in court.

Herring said he believes the ban is itself unconstitutional and violates the rights of gay Virginians.

Conservative Republicans are apoplectic, saying that as attorney general, it’s Herring’s job to defend all the laws of Virginia, even if he doesn’t like them.

Democrats and groups supportive of same-sex marriage are delighted.

Below are statements from both sides.

House Speaker Bill Howell, R-Stafford:

“Less than two weeks ago, Mark Herring took an oath and swore to preserve, protect and defend the Constitution of Virginia. 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.”

Sen. Mark Obenshain, R-Harrisonburg, who narrowly lost the AG’s race to Herring:

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.”

Attorney General Herring, who on the campaign trail refused to take a clear position on whether he would defend Virginia law in this and other instances, will be filing a brief in support of the plaintiffs, according to spokeswoman Ellen Qualls.

“The Attorney General is the Commonwealth’s lawyer,” said Obenshain. “It is deeply inappropriate for the Attorney General to use state resources to actively oppose a duly ratified constitutional amendment. Through this decision, Herring is effectively seeking to unilaterally reverse the actions of the General Assembly in adopting the Amendment, and the people of Virginia in ratifying it. There are deeply held convictions on both sides of this issue, which is why it is all the more important that the case has its day on court—and that both sides of the dispute are ably and robustly argued.”

In a September interview with the Richmond Times-Dispatch, Herring said that he would “poll the attorneys in the attorney general’s office who have the expertise in the particular subject matter” to help him determine whether or not to defend the Marriage Amendment or other laws in court. At a debate on October 2nd, he pointedly declined to state whether he would defend state laws with which he disagreed.

Obenshain concluded, “I look forward to working with the Attorney General on many important issues for the good of all Virginians, and have no intention of highlighting every possible point of disagreement that may arise throughout Herring’s term in office, but I consider the question of whether or not the Office of the Attorney General is to defend Virginia law a matter of utmost importance, something that goes to the heart of the duties of the Attorney General. This is especially true given Mark Herring’s dissembling comments made over the past six months on the campaign trail.  Virginians should be disappointed that he didn’t display the courage to share his intentions when repeatedly asked during his campaign. Today’s decision sets a disturbing precedent and has the potential to deprive Virginians on both sides of this important issue of the legal scrutiny the matter clearly merits.”

Republican Party of Virginia chairman Pat Mullins:

“It took Mark Herring less than a month to decide he doesn’t want to be Attorney General. The first job of Virginia’s Attorney General is to be the Commonwealth’s law firm, and to defend the duly passed laws of Commonwealth.”

“The subject matter is irrelevant. Virginia’s constitutional amendment and its challenges were well known when Mark Herring spent millions of dollars fighting to become Virginia’s attorney. Attorneys don’t get to choose whether or not they will defend their clients. Indeed, lawyers have a duty to select their clients carefully, because they are ethically bound to represent the claims of their clients, good or bad.”

“By running for the office, Mark Herring asked for the challenge of defending Virginia’s Constitution and all it contains.”

“For a court to make a determination on an issue with this much gravity, both sides need to be ably represented. Only through a robust and fair adversarial system — where both sides have the resources they need to make the best possible case — can the courts reach a fair decision on this issue. Mark Herring’s decision today not only abandons his first duty, it hobbles this vital legal process. It turns what could have been landmark jurisprudence into a political farce. ”

“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.”

From the other side….

House of Delegates Democrats:

“We are pleased to hear that Attorney General Herring has, after careful consideration, determined that Virginia’s ban on same-sex marriage is unconstitutional,” said Democratic House Leader David Toscano. “We applaud the Attorney General for working to ensure the rights of all of our citizens are protected.”

“Windsor was clear that the 14th Amendment requires Virginia to honor all marriages from other states,” said Delegate Scott Surovell. “I’m glad to see Attorney General Herring standing up to honor federal precedent and not subjecting Virginia to the ignominy of Massive Resistance to equality yet again.”

Democrats have sponsored several bills to repeal the Marshall-Newman Amendment: HB 939-Surovell, HJ 3-Morrissey, HJ 11-Surovell, HJ-67 Plum, and HJ-77-Herring

The ACLU:

“We’re pleased to welcome the Attorney General and the Commonwealth to the right side of history, and we want to be sure that whatever happens next will result in a quick, clear, and final decision affirming the freedom to marry for our clients and for all Virginians,” said Claire Guthrie Gastañaga, executive director of the ACLU of Virginia.

The Attorney General’s office will file papers announcing its new position today in the lawsuit Bostic v. Rainey, in which attorneys Ted Olson and David Boies are counsel, and soon should file similar papers in the second lawsuit Harris v. McDonnell, which was filed last year by the American Civil Liberties Union, the ACLU of Virginia, Lambda Legal, and the law firm Jenner and Block.

The legal move follows the inauguration of Democratic Governor Terry McAuliffe, who replaced Republican Governor Bob McDonnell earlier this year, and Attorney General Mark Herring, who replaced former Attorney General Ken Cuccinelli. The previous administration had staunchly defended the marriage ban.

“It is a critical and important development when the Attorney General-the keeper of the federal and state constitution in the Commonwealth– joins us in arguing that barring same-sex couples from marriage is clearly unconstitutional,” said Greg Nevins, counsel in Lambda Legal’s Southern Regional Office based in Atlanta. “We will continue to work to remove all remaining impediments so that Virginia can join the growing number of states where same-sex couples in loving, committed relationships are treated equally and can enjoy fully the benefits and responsibilities marriage provides.”

“Today action’s by Virginia’s chief legal officer continues America’s evolution on this issue. More and more Americans are embracing the idea that all loving and committed couples should have access to the protections that only come with marriage,” said Amanda Goad, staff attorney with the ACLU Lesbian Gay Bisexual and Transgender Project. “With the Attorney General on our side, we hope that we can soon count Virginia among the 17 other states where same-sex couples have the freedom to marry.”

More information on this case can be found at: www.aclu.org/lgbt-rights/harris-et-al-v-mcdonnell-et-al

 

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