Principal Drafter of Virginia Constitution Files Brief Backing Gay Marriage

School of Law - University of Virginia

In yet another blow to the religious bigots extremists who spearheaded the passage of Virginia's anti-gay animus inspire Marshall-Newman Amendment, A.E. Dick Howard -  a law professor at the University of Virginia who I recall from my law school days - who was executive director of the commission that drafted Virginia's current constitution has filed an amicus brief with the 4th Circuit Court of Appeals in Bostic v. Rainey that urges the Court to uphold the ruling that the Marshall-Newman Amendment is unconstitutional.  The brief drives home two principal points: (i) the United States Constitution trumps the Virginia Constitution and (ii) the majority does not get to take away the rights of a minority that it doesn't like.    The Virginian Pilot has details.  Here are highlights:

Three constitutional scholars, including the principal architect of Virginia’s current constitution, have filed court papers supporting Attorney General Mark Herring’s decision not to defend the state’s prohibition on same-sex marriage.

Virginia’s gay-marriage ban is the target of what could become a landmark legal case working its way through the federal courts. A Norfolk district judge struck the ban down in February, but delayed implementation of her decision pending an appeal to the 4th U.S. Circuit Court of Appeals.

In a “friend of the court” brief filed with the appeals court Thursday, the three scholars say Herring had not only the authority but the obligation to abandon the defense of Virginia’s same-sex marriage ban once he determined that it violates the U.S. Constitution.

The three scholars say Herring acted properly because two centuries of legal precedent make it clear that the state constitution is subservient to the federal Constitution.

One of the three is A.E. Dick Howard, a law professor at the University of Virginia who was executive director of the commission that fashioned the current Virginia constitution, adopted in 1970. Howard was the principal draftsman of the document.

Also signing onto the brief were two other law professors, Daniel Ortiz of U.Va. and Carl Tobias of the University of Richmond.

Herring took an oath to defend both the state and federal constitutions, and it has been clear since the federal Constitution was ratified in 1788 that it must prevail when there is a conflict, the scholars argue: “Public officials who swear to defend both constitutions owe their first loyalty to the Constitution of the United States.”

Previous attorneys general of both parties have declined to defend state laws that they determined were invalid, just as Herring did, the scholars point out.

“An Attorney General is not an automaton who must blindly support Virginia law, especially when he concludes that it conflicts with the Constitution as the Supreme Law,” they argue. “Virginia’s citizens elect an Attorney General on the expectation that he will exercise his legal judgment in their interest. Attorney General Herring has the authority and the duty to do so here.”

Del. Bob Marshall and other Christofascist extremists, including failed gubernatorial candidate Ken Cuccinelli refuse to recognize what every first year law student knows:  The  U. S. Constitution ALWAYS overrides the state constitution.