Mark Herring Defends Gay Marriage Shift in Times Dispatch Op-Ed

The hysteria from the Christofascists and their political whores in the Virginia GOP since Attorney General Mark Herring announced that his office would cease defending Virginia's anti-gay animus inspired Marshall-Newman Amendment continues without abatement.  Right wing blogs such as Bearing Drift continue to see disingenuous, spittle flecked rants by typically angry white Christians outraged that the days of their ability to oppress LGBT Virginians may be waning.  Just as is done with selective parsing of the Bible to justify hate and bigotry, these angry men selectively pick and choose passages of from the Constitution and/or cling to 18th century scientific/medical knowledge to justify their hatred.  In defense of his actions, Mark Herring has an op-ed column in today's Richmond Times Dispatch.  Here is the op-ed in its entirety:

After I changed the Commonwealth of Virginia’s legal position in the case of Bostic v. Rainey, a challenge in federal court to Virginia’s ban on marriage for same-sex couples, I am not surprised that some have criticized my decision, but I am surprised that the criticism didn’t even attempt to refute the legal analysis.

Instead of engaging in a substantive discussion about my conclusion, critics of my action have tried to muddy the waters by raising unfounded and never-before-expressed concerns about the authority of the attorney general to act when confronted with an unconstitutional law.

One cannot help but notice that the loudest critics are a handful of strident partisans and social conservatives who have been most vehemently opposed to treating gays and lesbians as equal Virginians.

Many of these critics have voted to deny the same employment discrimination protections any other Virginians enjoy, and have been staunch opponents of guaranteeing same-sex couples the right to marry. It is hard not to conclude that their opposition to equality, rather than concern for legal authority, is the real motivator of the bluster.

In order to return the debate to the real issue at hand — whether Virginians have the legal right under the U.S. Constitution to marry the person they love — please permit me to explain, as we do in the state’s brief to the court, why the attorney general has the authority and obligation to fight Virginia’s marriage ban.

My oath of office requires me to “support the Constitution of the United States and the Constitution of the Commonwealth of Virginia.” After a thorough and rigorous legal analysis, I have concluded that Virginia’s ban violates the Equal Protection and Due Process Clauses of the 14th Amendment to the U.S. Constitution by infringing on the fundamental rights of Virginians to marry, a right the Supreme Court has long recognized is guaranteed. As we are taught from an early age, when a state law or a provision in a state constitution is found to be in conflict with the U.S. Constitution, the U.S. Constitution prevails. Otherwise, Virginia could still ban marriage between people of different races or impose arbitrary restrictions on voting based on income, gender and race.

It is completely within the power of the attorney general to refuse to defend in court a law that he has determined to be unconstitutional after an independent, rigorous analysis. This was the position of former Attorney General Ken Cuccinelli, who said “I will not defend what I, in my judgment, deem to be an unconstitutional law.” In fact, just last year, Cuccinelli declined to defend Gov. Bob McDonnell’s Opportunity Educational Institution after he determined it to be unconstitutional. It should be noted that some of the loudest critical voices today were silent then.

This understanding of the attorney general’s role has not been controversial until I applied it to Virginia’s marriage ban. Two of the past three elected attorneys general declined to defend state laws, and conservative jurists such as John Roberts, Robert Bork and Antonin Scalia have affirmed this role of attorneys general. This tells me that critics are not actually opposed to this long-established power of the attorney general, but are in fact opposed to its application to marriage equality.

Finally, many who have criticized my decision to change the commonwealth’s position in the case seem to simply misunderstand the role of the attorney general. The attorney general first and foremost represents the people of Virginia, not just state agencies and agency heads. This special relationship is unique and different from an attorney in private practice. The attorney general is elected to set the state’s legal position and speak on its behalf. In this case, I will also be speaking for the same-sex couples who are being deprived of their constitutionally protected right to marry.

My action has not ended the marriage ban, nor has it ended this court case, nor does it mean the marriage ban will not be defended in court. The circuit court clerks of the City of Norfolk and Prince William County both remain parties in the suit and their legal teams have promised to “amply explain why Virginia’s Marriage Laws are constitutional.” Consistent with my commitment to the rule of law, my action was predicated on this and on the continued enforcement of the ban until the courts can rule.

The fundamental question before us is whether the U.S. Constitution allows Virginia to treat same-sex couples as second-class citizens. Based on my analysis and recent court rulings, I believe the answer is no. If others feel differently, they can make their case; but we should not allow ourselves to be distracted by unrelated issues that were settled long ago.

Kudos to Mark Herring.  I am proud of him for his courage and competent legal analysis that focuses on the law and legal precedents rather than religious based hate and animus.