Remembering History - Sitting for Justice: Woolworth’s Lunch Counter

It was 54 years ago yesterday that four black college students took the bold step of sitting down at a whites only lunch counter at the Woolworth’s store in Greensboro, North Carolina, and asking for service.  Not surprisingly, their request was rejected.  They were eventually joined in coming days by additional students, including my friend Ann Vernon, the first recipient of the Equality Virginia "Legends" award.  Ultimately, Woolworth capitulated and the lunch counter was desegregated.  Lest we forget, the Bible was used to justify segregation (as it had previously been used to justify slavery) just as the Bible is now used to justify anti-gay discrimination.  Some things change, but not the use of the Bible by the "godly Christians" to justify hate and bigotry.  Here are highlights from the Smithsonian webpage:

On February 1, 1960, four African American college students sat down at a lunch counter at Woolworth’s in Greensboro, North Carolina, and politely asked for service. Their request was refused. When asked to leave, they remained in their seats. Their passive resistance and peaceful sit-down demand helped ignite a youth-led movement to challenge racial inequality throughout the South. 

In Greensboro, hundreds of students, civil rights organizations, churches, and members of the community joined in a six-month-long protest. Their commitment ultimately led to the desegregation of the F. W. Woolworth lunch counter on July 25, 1960.

Note from the photo above how blacks were good enough to prepare food for whites, but not good enough to be served as paying patrons.  

More Sunday Male Beauty

A Gay Guide to Super Bowl XLVIII

 

I will admit that aside from skiing (on snow and water), sailing, and surfing, I did not get the sports gene.  Neither did the boyfriend.  Nonetheless, we will be attending a friend's annual Super Bowl party in Virginia Beach where there will be a plethora of gays some of whom will be actually paying attention to the game.  Since I don't follow pro-sports teams, I will be supporting the Sea Hawks based on the fact that my son (who doesn't follow sports either) and daughter and son-in-law live in Washington State whereas I have no connection at all with Denver.  Given that I will be at a Super Bowl party, a column in Out Sports gives some facts on tonight's game for the non-sports follower.  Here are highlights:

This is my 13th installment of how I see the Super Bowl, along with the important and fun angles.

A friend of mine says it perpetuates stereotypes that gay men only like the Academy Awards, reality TV or fashion, but the conceit has always been that it's a knowledgeable gay football fan hoping readers, gay or straight, will learn something new to toss out at a Super Bowl party.

WHAT: Super Bowl XLVIII (48 for our non-Roman readers) will be held Sunday Feb. 2 and pits the Denver Broncos (15-3) from from the American Football Conference against the Seattle Seahawks (15-3) from the National Football Conference. 

BUD BOWL: The game matches two teams located in states that have legalized marijuana, Colorado and Washington. Super Bowl 420, the Weed Eater Bowl … insert your pot pun here.

WHERE: The game is being played at MetLife Stadium in East Rutherford, N.J., though technically the host city is New York. Both teams are staying in Jersey City, so don't expect a lot of late nights in Manhattan for the players. Rest assured, no A-list parties will be held in Jersey City.

WEATHER: The big news about the location is that it's the first time a game is being played in a cold weather climate in a non-covered stadium. The forecast for game time (6:30 p.m. local) is for the temperature in the mid-20s with a chance of snow showers, which would make it the coldest Super Bowl game ever. I think it's a terrible idea to hold the game outdoors in a cold climate, since weather should not be a determining factor once the conference playoffs are over. But hosting a Super Bowl was an inducement the NFL offered the New York Jets and Giants for building MetLife Stadium.

KICKOFF/TV: The kickoff is set for 6:30 p.m. EST, shortly after opera soprano Renee Fleming sings the National Anthem. She is the first opera singer to perform the song at the Super Bowl. Friend of Outsports and my source for all things opera, Jim Allen, has this to say about Fleming:  "She's marketed in the opera world as a sophisticated but unpretentious, non-Diva singer who just happens to be one of the most popular opera singers in the world.

FASHION NOTE: Denver is the home team and will wear orange jerseys with white pants. The Seahawks will wear their white away jerseys with navy pants with a neon green stripe. It will be a good contrast on TV.

SHIRTLESS FASHION NOTE: Denver wide receiver Eric Decker and his wife, country singer Jessie James, have a reality show on E! They also did a photo spread for GQ magazine they featured a lot of him shirtless, which garnered zero complaints from our readers:

THE GAY ANGLE: Unlike past recent Super Bowls, there is not much of a gay angle here, with few cases of players saying anything pro or con about gay issues. Seattle punter Jon Ryan was very vocal last Super Bowl when San Franciso 49ers player Chris Culliver made anti-gay remarks; Ryan said Culliver needed to be suspended. In contrast, Seattle lineman Chris Clemons, responding to Jason Collins coming out in the NBA, said a player coming out openly would be a "selfish act."

As for Denver, . . . Broncos defensive back Dominique Rodgers-Cromartie said "it would be hard" for some players to accept a gay player.

ENTERTAINMENT: Bruno Mars, backed up by the Red Hot Chili Peppers, will be the halftime entertainment. Since I can't name one song Mars has done and have never liked the Peppers music, I don't have much to say and will use halftime for a food break. The only question will be whether Flea gets shirtless in 20-degree temperatures.

THE COMMERCIALS: You can preview Super Bowl commercials on a zillion sites and they usually bore me, but one I will watch will be David Beckham for H&M underwear:  "In the spot, David is accidentally locked out of a photo shoot on a rooftop wearing only his underwear. With no way down, he goes to great lengths to find a way back inside, performing all his own stunts in the process.  Fans will see Beckham zipline across rooftops, scale buildings and navigate tricky obstacles all in his signature briefs. The commercial culminates in one of two unexpected ways – with David either "#Covered" or "#Uncovered."

THE PICK: Before the season I took Denver over Seattle in the Super Bowl and I see no need to change it. Manning will make enough plays and Welker in the slot catching passes will be the X factor. Denver's defense will do just enough to hold down Wilson and the Seahawks. Broncos 23, Seahawks 20.

9th Circuit Ruling On Gay Jurors Continues to Have Huge Reverbrations

As previously noted, on January 21, 2014, the Ninth Circuit Court of Appeals recently handed down a ruling in SmithKline Beecham Corp. v. Abbott Labs, a case that was not a gay rights or same sex marriage case that may have a huge impact on LGBT individuals across the nation.  Especially, if the case is appealed to the U.S. Supreme Court and is reversed or affirmed.  Either way, the impact will be huge.  The case which arose in the context of two huge pharmaceutical companies suing each other involved the striking of a gay juror by one of the litigants just as blacks would have been stricken in the South in the past (and probably even today in some jurisdictions).  In its ruling the 9th Circuit held that heightened scrutiny applied to such a discriminatory striking of a gay juror.  The effect of the holding is that in gay rights cases, the burden of proof is shifted to the state to justify discriminatory laws.  Indeed, the SmithKline case was cited by Attorney General Mark Herring in his memorandum that reversed his office's defense of the Marshall-Newman Amendment.  A piece in Huffington Post looks at just how significant these decision may be in the fight to make same sex marriage legal nation wide.  Here are some highlights:

In the next few weeks, AbbVie, a pharmaceutical company that produces an important AIDS drug, will make a decision that could have a far-reaching effect on gays, lesbians, bisexuals and transgender people, and not just those with HIV.

If the company appeals a recent court ruling and wins, it will come as a blow to those who hope to see states around the country topple the remaining barriers both to same-sex marriage and to laws that protect gay people from discrimination.

The case did not initially concern gay rights at all, but was instead a fight between two pharmaceutical giants.

[T]he case may have never come to the attention of the broader gay rights community if not for an attempt by Abbott to tilt the jury's makeup in its favor: In 2011, a lawyer for Abbott dismissed a potential juror who had revealed he was gay and had friends with HIV. SmithKline argued that the removal was discriminatory, and last week the U.S. 9th Circuit Court of Appeals agreed. 

In the unanimous ruling, a three-judge panel called the exclusion of gay jurors unconstitutional. The reach of this ruling goes beyond gay jurors, however, because it touches on one of the most significant legal questions concerning gay rights today: Should laws related to sexual orientation be subject to "heightened scrutiny"?

Over the last several decades, the Supreme Court has developed a three-tiered system for classifying alleged violations of the Equal Protection Clause of the 14th Amendment, which says that states can't deny people equal protection of the laws. When the Court classifies a case as deserving of "heightened scrutiny," it falls to the state to prove that its laws serve an important state interest. Until recently, the court has reserved this level of scrutiny for cases involving race and gender. But that’s changing.

In Nevada, the 9th Circuit Court of Appeals is currently reviewing a lawsuit that aims to strike down the state's same-sex marriage ban. And it's not looking good for opponents of same-sex marriage, thanks to the court's recent decision in the Abbott case. As Nevada Attorney General Catherine Cortez Masto acknowledged in a statement last week, the state's earlier arguments for banning same-sex marriage may not hold up in a court that applies heightened scrutiny and requires the state to justify its laws.

The state has not yet indicated whether it plans to pull out of the case entirely and refuse to defend the law, as the Obama administration did last year when the Supreme Court was considering the constitutionality of the Defense of Marriage Act. But this week, Alan Glover, an official in Carson City who was named in the lawsuit for denying the plaintiffs a marriage license, appears to have done just that.   "We don't feel that we have a legal argument to meet the heightened scrutiny," Neil Rombardo, the District Attorney for Carson City, told The Huffington Post.

Similar marriage lawsuits are underway in Oregon, Idaho and Arizona, all of which fall under the 9th Circuit's domain, and gay rights advocates are closely watching these cases too.

AbbVie has until the beginning of March to announce whether or not it will appeal the ruling in its case.   If it does, it would be asking the 9th Court not only to rule that it is acceptable to exclude gay citizens from jury service, but also to make it more difficult to challenge anti-gay laws. 

AIDS activists have long protested AbbVie for raising the prices of its immunodeficiency drugs, but if the company seeks an appeal there may be a stronger and more widespread blowback from the LGBT community. 

Brian Moulton, the head of the legal team of the gay rights group Human Rights Campaign, said he was keeping a close eye on AbbVie’s actions. Each year, HRC puts together a widely read index that ranks companies on LGBT issues. "One of the criteria in that rating system is whether or not a company takes a position in litigation that's adverse to the LGBT community," Moulton said.
If AbbVie does appeal, and succeeds, Moulton says, "it would be tremendously problematic."
 

Why Persecuting Gays Is All the Rage in the Third World

The exporting of hate and homophobia by American Christofascists has certainly played a roll in the growing homophobia and persecution of gays in Africa and other parts of the so-called Third World (and even in Russia).  Aiding this effort has been the general ignorance and uneducated nature of much of the populace in these targeted countries.  Yet a third cause is fundamentalist Islam.  But a piece in The Daily Telegraph also makes the case that these hot beds of anti-gay bigotry are using gays to distract their populace and give the appearance of fighting past colonialism even as American Christofascists dupe the population into acting as the Christofascists' trained circus dogs much as they do with black pastors in America (and certainly in Virginia) who are too uninformed to realize that they are being manipulated by the same folks that supported segregation and the Jim Crow laws.  Here are some excerpts from the piece in the Telegraph:

Is homophobia the new anti-colonialism? It’s an odd question to ask, but an important one. In dozens of countries, the persecution of homosexuals has acquired a new ferocity. Anti-gay sentiment is turning into a cause that unites non-Western societies divided by religion, ethnicity and history.

This is bad news, obviously, for gay people who find themselves dragged in front of magistrates, bullied out of their jobs, spat at in the street or executed. It’s also jolly embarrassing for Western governments, who don’t want to say anything that might jeopardize trade relations – and also for liberals, who hate to point the finger at the developing world.

The one example of persecution that’s attracted a lot of attention is Russia’s new ban on “gay propaganda”. No one in the West likes Putin’s regime, which you can criticise without risking charges of racism.
But when it comes to the Middle East, Africa and south Asia, any Westerner who sticks up for gay rights is inviting accusations of racism, neo-colonialism and Islamophobia.

I’ve been looking at the map, and I reckon you could walk from Angola to Burma without setting foot on land where homosexual activity is legal – except for a sliver of Iraq, which had decriminalisation imposed on it in 2003 but which is one of the most dangerous places on earth for gays.

The taboo against same-sex activity is getting stronger, not weaker. The spread of Islamism is a factor . . .  However, Christians and Hindus are implicated, too.

In Nigeria, Anglican clergy helped pass into law the Same-Sex Marriage Prohibition Act, which bans even displays of affection between homosexuals. In Uganda, parliament has passed a bill that calls on citizens to report homosexuals to the authorities. India has just recriminalised gay sex.

Why this resurgence of homophobia? Most anti-gay countries, with the exception of India, are economically stagnant – and resentful of the prosperous, decadent West. (Note that China, preoccupied by money, can’t be bothered to climb aboard the anti-gay bandwagon.)

Until recently, anti-colonialism united these countries; but, with so few colonies left, that cause has been struggling. Then along came same-sex marriage, which Western LGBT activists want to see legalised everywhere.

Suddenly conservative societies have a new bogeyman, a neo-imperialist assault on their ancient way of life. And how interesting that Russia should choose this moment to target its own sexual minorities. Just as the Soviet Union once led the anti-colonial movement, so now Putin is portraying himself as the champion of “traditional values”.

The LGBT lobby found it ludicrously easy to change the law in Britain – thanks, unexpectedly, to the Tories. Now let’s see it rise to the much less fashionable challenge of wiping out vicious legislation in the developing world.

The author of the article is correct.  LGBT activist MUST do more to counter the horrors being committed overseas.  One way to do that is to work to break the power of American Christofascists and to push to have hate merchants like Scott Lively criminally prosecuted.  As long as these people keep receiving donations and receiving tax exempt status, they will continue to export hate and support anti-gay regimes.  Another thing to do is to stop tourism to any gay countries like Jamaica and Russia.  Why help support those who hate us?

Will Republicans Face Turmoil in 2016?

Click image to enlarge

As noted before, a civil war continues within the Republican Party at both the national and state level.  In every instance on one side stand what's left of the once plentiful sane Republicans who made smaller efficient government and fiscal conservatism on the other side are the Christofascists and white supremacists (who are largely one and the same).  The later are a Frankenstein monster that was cynically created when the so-called GOP establishment welcomed the insane, the openly racist and the religious fanatic crowd into the party for short term advantage.  This element now comprises a metastasizing cancer which over the long term will hopefully be the death of the GOP as demographic change continues and the angry white Christofacists literally die off and become a permanent minority in America.  Personally, that day cannot come soon enough to satisfy me.  In the shorter term - e.g., in 2016 - this civil war will rage unabated and may well roil the chances of the GOP finding a presidential candidate who is electable in the general election.  A piece in the Washington Post looks at the likely coming turmoil.  Here are article excerpts:

As Republicans look ahead to the 2016 presidential race, they are hoping to avoid the kind of chaotic and protracted nominating battle that dismayed party elders and damaged the eventual candidacy of Mitt Romney.  That, however, could be a hard thing to prevent.

The party is divided and in turmoil, with a civil war raging between its establishment and insurgent factions. For the first time in memory, there is no obvious early favorite — no candidate with wide appeal who has run before, no incumbent president or vice president, no clear establishment pick.

Meanwhile, an enormous number of potential contenders are looking at the race, including, perhaps, a return of virtually everyone who ran in 2012. Come this time next year, 15 or more of them could be traveling the early primary states, jockeying for attention and money.

The Republican National Committee is doing its best to prevent a replay of the spectacle of 2012, which saw one candidate after another pop up as a mortal threat to the front-runner. Late last month, the RNC began putting into place rules that would shorten the primary season and make it begin later.

But two years out from the Iowa caucuses, the Democrats are the ones who are closing ranks. The latest Washington Post/ABC News poll shows presumed contender Hillary Rodham Clinton holding the support of 73 percent of those likely to vote Democratic. In the poll’s 30-year history, no one has ever had such a strong grip on the party at this early point.

On the Republican side, things are so wide open that even 2012 nominee Romney is getting another look, although the former Massachusetts governor recently told the New York Times: “Oh, no, no, no. No, no, no, no, no. No, no, no.”

Romney’s running mate, Rep. Paul Ryan (Wis.), is expected to stay in the House in the coming years, with the chairmanship of the Ways and Means Committee or the speaker’s gavel on the horizon. But he told CNN, “I’m not closing my options.”

Nor, it seems, is anyone else.   “It’s certainly something I’m looking at very seriously,” said real estate developer and reality-TV star Donald Trump.

Republicans are hoping to bring order out of chaos with a new set of rules to govern the nominating process.  The new rules — if enforced — would tighten the primary season and delay its launch until February. (The 2012 Iowa caucuses took place in mid-January.)

The RNC would prohibit “beauty contests” such as Iowa’s straw poll, which saps campaign resources and provides a jolt of temporary buzz but usually proves to be meaningless in picking the ultimate nominee. The party also hopes to sharply limit the number of debates and expects to move its convention up to late June or early July, which would give its nominee a jump on the general-election season.

Yet there is always the possibility that an ill-timed breakout moment could catapult one of the less-viable candidates to the nomination, said Republican consultant Mike Murphy, who mentioned Cruz as a potential “poison pill” in a general election.

[A]ny real solution to the party’s problems lies in the candidates, many senior Republicans argue.
“I thought we had a weak field in 2012,” said Barbour, who is one of the most influential voices in the GOP establishment. He predicted that 2016 will see “a large field, like in 2012, but a much higher-quality field.”

That anyone like Michelle Bachmann could be a serious candidate in 2012 shows just how low the GOP has fallen and how utterly insane much of the GOP base has become.  I predict that the Christofascists and their repackaged Tea Party mirror image will cause nothing but problems in the run up to 2016.  And the GOP establishment will have no one to blame but themselves. These lunatics should NEVER have been voted onto local city and county committees.  Never, ever!

Sunday Morning Male Beauty

Obama Adviser Claims An ENDA Executive Order Is Again "Under Consideration"

With John "I'm a Douche Bag" Boehner stating that the Employment Non-Discrimination Act, a/k/a ENDA, will go nowhere in the GOP controlled House of Representatives, pressure is again mounting on Barack Obama to issue and Executive Order banning discrimination based on sexual orientation which would be binding on the federal government and perhaps more importantly all government contractors.  In the Hampton Roads area, such an order would have significant impact given the area's high number of defense contractors.  Now, White House counselor John Podesta says such an order is under active consideration.  Here are highlights from the Washington Blade:

In a departure from previous public comments from the Obama administration, White House counselor John Podesta said on Friday an executive order barring LGBT discrimination among federal contractors is “under consideration.”

During an interview with Bloomberg News’ Al Hunt, Podesta made the remarks when asked if President Obama would issue a heavily sought-after executive order prohibiting federal contractors from discriminating on the basis of sexual orientation or gender identity.

“Well, what he said in the State of the Union was he was going to require federal contractors to pay a minimum wage of $10.10,” Podesta said. “The order that you’re talking about is under consideration at the White House. We’re looking at that.”

Asked by Hunt what Obama is likely to do, Podesta said, “Well, you know, I’m not going to prejudge that.”

Podesta’s assertion the executive order is “under consideration” is consistent with an email from Democratic National Committee Treasurer Andy Tobias leaked to the Washington Blade in June in which he said a “process” is holding up the directive. It’s also consistent with a one-time statement from White House spokesperson Shin Inouye that the administration “continue[s] to study the issue.”

Tico Almeida, president of Freedom to Work, welcomed the comments from Podesta, but said the time for consideration of the executive order is over.

“It’s great to hear Mr. Podesta say that the LGBT executive order is still under consideration at the White House, and I know that many LGBT organizations plan to keep pushing until this long overdue campaign promise becomes a reality,” Almeida said. “But I don’t think there’s anything left to study or consider: both Republican and Democratic presidents before President Obama have signed orders banning discrimination at federal contractors and they’ve always been upheld in the courts. This order fits perfectly with the White House plans for a ‘year of action,’ and the time to sign is now.”

I agree: Obama needs to stop contemplating his navel and procrastinating and act.  Sign the executive order now!!

Newark Star-Ledger: Chris Christie Should Resign

As noted in an earlier post yesterday that linked to a New York Times article, David Wildstein seemingly has decided not to fall on his sword to save Chris Christie's more than ample ass and is claiming to have evidence that Christie knew all about the George Washington Bridge government ordered traffic fiasco.  Now, New Jersey's largest newspaper - which had endorsed Christie for re-election - is calling for his resignation or impeachment if Wildstein's allegations prove true.  Here are excerpts from the Star-Ledger's main editorial:

Forget about the White House in 2016. The question now is whether Gov. Chris Christie can survive as governor.

David Wildstein, the man who ordered the George Washington Bridge lane closures, is now pointing the finger directly at Gov. Chris Christie, saying the governor knew about the lane closures in September when they occurred.

That directly contradicts Christie account at his Jan. 13 press conference when he made this statement: "I had no knowledge of this — of the planning, the execution or anything about it... I first found out about it after it was over."

If this charge proves true, then the governor must resign or be impeached. Because
that would leave him so drained of credibility that he could not possibly govern effectively. He would owe it to the people of New Jersey to stop the bleeding and quit. And if he should refuse, then the Legislature should open impeachment hearings.

By the governor's own standard, lying is a firing offense. Here's what he said about his deputy chief of staff, Bridget Kelley, at the same press conference: "There's no justification for ever lying to a governor or a person in authority in this government. As a result, I've terminated Bridget's employment."

One hopes that he would consider lying to the people of New Jersey as an offense of equal magnitude.

So for now, set aside the other scandals. Forget about the charge of extortion in Hoboken. Forget about the growing evidence showing that Christie used Sandy aid as a political slush fund, leaving the real victims short.

The lane closures in Fort Lee not only caused people to miss meetings, and lose out on business deals. It delayed ambulance responses in Fort Lee, and so put people's lives at risk. It was an abuse of government authority . . . . 

Is Wildstein telling the truth? He faces a criminal investigation himself, so he has a powerful incentive to give prosecutors damning information they can use against a bigger fish. That would give him leverage to negotiate a plea deal. So it is too early to know.

But Wildstein says he has documents that prove the governor was lying at his famous two-hour press conference, when Christie blamed the event on the "stupid" actions of his own staff. And certainly, Wildstein was in a position to know the roots of this conspiracy.

Wildstein's staement means that others who have been implicated in this scandal will probably come forward now as well, hoping to strike deals with prosecutors before their testimony becomes redundant. And all this will happen as the administration answers dozens of subpoenas, and grapples with both criminal and legislative investigations.

When you layer on top of this the criminal investigation in Hoboken, and a separate investigation of Sandy spending by the federal Department of Housing and Urban Development, it becomes difficult to see how Christie can function. It should be clear even to him now that he should step down as head of the Republican Governors Association.

This is a shocking development. Christie is now damaged goods.

Mark Herring's Decision to Not Defend Unconstitutional Law Not Unusual

Virginia Republicans and their Christofascists puppet masters continue to vent and foam at the mouth over Attorney General Mark Herring's decision to cease defending Virginia's unconstitutional Marshal-Newman Amendment.   One can find daily rants at Bearing Drift and other far right outlets.  Through out all these rants, of course, is a convenient amnesia about hos such actions were perfectly fine when being done by Republican Attorney Generals, Jerry Kilgore and Ken Cuccinelli.  But then again, who ever claimed that today's Republicans aren't liars and hypocrites.  Fellow local blogger and news junkie Vivian Page recently wrote an op-ed piece in the Virginian Pilot that underscored the dishonesty and hypocrisy of Herring's GOP critics.  Here is the op-ed in its entirety:

VIRGINIA’S new attorney general, Mark Herring, has decided not to defend the state’s constitutional ban on gay marriage — drawing accusations that he’s not fulfilling his duties. We’ve seen this battle before.

In 2002, Republicans gained a majority in the Colorado legislature. Using that control, the legislature passed a bill redrawing the state’s congressional districts. It was signed into law by the governor. The state’s attorney general, believing the re-redistricting to be unconstitutional, petitioned the Supreme Court of Colorado to prohibit the secretary of state from enforcing the law.

In response, the secretary of state, Donetta Davidson, sued the attorney general, Ken Salazar. Davidson argued that Salazar’s suit against an employee of the state violated his ethical duty to represent his client as attorney general.

In 2003, the state Supreme Court ruled on both suits. On the ability of the attorney general’s right to sue, the court rejected Davidson’s argument, citing a 1905 decision that “it is the function of the Attorney General ... to protect the rights of the public.” The court also ruled, after a thorough review of the prevailing federal law, that the re-redistricting plan violated the Colorado constitution.

In between the filing of the suits and the decision, a number of briefs were filed. One was filed by 44 attorneys general across the country in support of Salazar. Among the arguments in the brief is that an attorney general has an obligation to uphold the law: “When... he believes a statute violates the constitution, he has a paramount obligation to defend the constitution he is sworn to uphold.”

Virginia’s then-attorney general, Jerry Kilgore, was one of the 44 who signed the brief.

Last week, Mark Herring decided that Virginia’s marriage amendment and state laws prohibiting same-sex marriage violate the U.S. Constitution. As attorney general, Herring is sworn to uphold both it and the constitution of Virginia.

It seems that most agree it is the prerogative of the attorney general to refuse to defend a law that he believes is unconstitutional.

Herring’s predecessor, Ken Cuccinelli, took that position last year after the General Assembly passed a law allowing the state to take over failing schools. While then-Gov. Bob McDonnell, also a lawyer, and many others disagreed with Cuccinelli’s conclusion, few claimed he was required to defend the law.

The heartburn seems to come from Herring’s decision to argue for the amendment and laws to be declared unconstitutional. Some have pointed to Virginia State Bar Rules of Professional Conduct to conclude that Herring has violated ethical standards.   In particular, they point to a rule that prohibits a lawyer from representing a client whose interests are materially adverse to the interests of a former client.

Who, exactly, is the client of the office of the attorney general? Is it just those supportive of the law in question? Or is it opponents, too?

I’d argue that all are clients of the office, regardless of who occupies the seat. And so, the office of the attorney general didn’t change clients at all. The change instead was who is sitting in the chair.

   Cuccinelli believed that the marriage amendment and accompanying statutes were constitutional. His response to the two courts hearing challenges to these obviously represented his opinion.

Herring does not believe that is the case. He had a duty to inform the courts of this change in the position of the office of the attorney general.

Forty-four attorneys general — Republicans and Democrats — agreed that when an attorney general believes as Herring does, “he has a paramount obligation to defend the constitution he is sworn to uphold.”   Herring is just doing his job.

 I would also point out that Herring's critics also hypocritically ignore other parts of the Virginia State Bar Rules of Professional Conduct.  In particular, Rule 3.3 which reads as follows:

Candor Toward The Tribunal

(a)   A lawyer shall not knowingly:

  (1) make a false statement of fact or law to a tribunal;

        (2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client, subject to Rule 1.6;

        (3) fail to disclose to the tribunal controlling legal authority in the subject jurisdiction known to the lawyer to be adverse to the position of the client and not disclosed by opposing counsel; or

        (4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.

    (b) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.

    (c) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.

    (d) A lawyer who receives information clearly establishing that a person other than a client has perpetrated a fraud upon a tribunal shall promptly reveal the fraud to the tribunal.

Given the fast changing case law, including decisions handed down in Utah and Oklahoma, not to mention the recent 9th Circuit ruling on heightened scrutiny, Herring would have violated this rule if he had continued to make Ken Cuccinelli's untrue argument.