NRO Accuses VA Attorney General Of Playing Politics For Refusing To Defend Same-Sex Marriage Ban
National Review Online is pushing an accusation that Virginia attorney general Mark Herring is "politicizing" his office because he has refused to defend that state's same-sex marriage ban in court. In reality, Herring's decision is a common one -- state officials on both sides of the political aisle have frequently refused to defend laws they consider to be unconstitutional, and he is not alone in his legal analysis.
Virginia Attorney General Won't Defend Same-Sex Marriage Ban In Court
New York Times: Virginia AG Says State Won't Be "On The 'Wrong Side' Of Justice On Civil Rights Matters." In January, Virginia Attorney General Mark Herring announced that his office would not defend a voter-approved ban on same-sex marriage in court. According to the Times, Herring would not "defend a law that violates Virginians' fundamental constitutional rights":
Asserting that Virginia had too often been on the "wrong side" of justice on civil rights matters, the state attorney general asked a federal court on Thursday to invalidate the state's ban on same-sex marriage, calling the law unconstitutional and oppressive.
At a news conference in Richmond, Mr. Herring said the ban violated the 14th Amendment right to due process and equal protection, an argument that has been the basis of successful legal challenges to same-sex marriage prohibitions in other states.
"I cannot and will not defend a law that violates Virginians' fundamental constitutional rights," Mr. Herring said. To do so, he said, "would be a violation of the law and my oath."
Mr. Herring cited legal cases in which he said Virginia's leadership had failed its residents by arguing against school desegregation in Brown v. the Board of Education, interracial marriage in Loving v. Virginia, and women's admission to the Virginia Military Institute, a state-supported military college, in United States v. Virginia.
"Too many times in our history, our citizens have had to lead the way on civil rights while their leaders stood against them," Mr. Herring said. "This will not be another instance. It is time for the commonwealth to be on the right side of history and the right side of the law." [The New York Times, 1/23/14 ]
National Review Online Called Herring's Decision "Politicization" Of The AG's Office
National Review Online: "AGs Are Basically Ignoring Their Responsibility." NRO contributor Carrie Severino joined her colleague Ed Whelan in celebrating a recent Washington Post op-ed that criticized state officials who refuse to defend unconstitutional laws in court. Severino complained that this "politicization" is evidence that attorneys general are working "on behalf of left-wing special interests":
[The] Washington Post features an op-ed by Colorado's attorney general, John W. Suthers, criticizing three state attorneys general for refusing to defend democratically enacted state laws. The net effect of such politicization, Suthers says, "corrodes our system of checks and balances." Which makes sense: These AGs are basically ignoring their responsibility to the state that elected them, and are instead acting on behalf of left-wing special interests.
In the three states Suthers identifies, California, Virginia, and Pennsylvania, traditional marriage was affirmed by voters in 2008, 2006, and 1996. If the elected officials of those states think the people have changed their minds since then, maybe they should let them say so through the ballot box. [National Review Online, 2/3/14 ]
But State Officials Of All Political Stripes Have Refused To Defend Laws They Consider Unconstitutional
Former Maine Attorney General: "AG Refusal To Defend Happens All The Time." It is actually quite common for attorneys general and other state officials to refuse to defend laws they consider to be unconstitutional. According to The Washington Post, attorneys general from across the political spectrum have declined to support "socially divisive issues" not for political reasons, but because they are "unconstitutional and should not be enforced":
Once state legislation is passed, it's usually up to the governor and attorney general to see that the law is implemented.
But in a number of high-profile cases around the country, top state officials are balking at defending laws on gay marriage, immigration and other socially divisive issues -- saying the statutes are unconstitutional and should not be enforced.
In Pennsylvania, for example, Attorney General Kathleen Kane (D) says she won't defend the state's ban on same-sex marriage in federal court. In Hawaii, Gov. Neil Abercrombie (D) filed court papers calling that state's gay marriage ban unconstitutional.
And in Indiana, Attorney General Greg Zoeller (R) has come under fire from conservatives for refusing to defend a portion of that state's immigration law. He said a recent Supreme Court ruling on a similar Arizona provision means that Indiana's law is unconstitutional.
Several academics, including former Maine attorney general James E. Tierney, said attorneys general are obligated to scrutinize laws that might be politically popular but legally flawed.
"The simple truth is that AG refusal to defend happens all the time," Tierney, who directs the National State Attorneys General Program at Columbia Law School, wrote in an e-mail. "Legislatures are comprised in most states by non-lawyers trying to do the right thing, but they do not understand the complexity of constitutional limits. They are advised, but often plunge ahead -- both liberals and conservatives -- and make constitutional mistakes. It then falls to the AG to clean this mess up." [The Washington Post, 7/18/13 ]
ThinkProgress: Last Two Republican Attorneys General Of Virginia "Would Not Defend What They Believed To Be Unconstitutional." Josh Israel of ThinkProgress reported that Herring's direct predecessor, former Republican gubernatorial candidate Ken Cuccinelli, proclaimed his obligation as an attorney general to not defend what he considered unconstitutional in a 2009 debate:
Herring, rather than an un-elected lobbyist or state legislators who choose to ignore the federal constitution's supremacy, is exactly the person tasked by Virginia's citizenry with determining which laws to defend.
Moreover, two recent Republican Attorneys General of Virginia -- both Family Foundation favorites who had the support of Howell and Marshall -- also made clear that they would not defend what they believed to be unconstitutional. In 2003, then-Attorney General Jerry Kilgore joined dozens of his counterparts from other states in signing a brief claiming that he was duty bound to challenge any statute he believed be unconstitutional. A year later, the Family Foundation's Cobb donated to his gubernatorial campaign and she even served on one of his advisory boards.
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." [ThinkProgress, 1/23/14] 
Federal Courts Are Agreeing With Herring's Decision Not To Defend The Ban
Richard Socarides In The New Yorker: The Supreme Court's Recent Rejection Of Discrimination Against Same-Sex Couples Has "In Fact Accelerated A Movement" Toward Marriage Equality. As explained by attorney and former Equality Matters President Richard Socarides in The New Yorker, federal courts have been grappling with the apparent unconstitutionality of such bans since the Supreme Court's decision in Windsor v. United States, which held that portions of the federal Defense of Marriage Act were unconstitutional:
[A] federal court expressly invoked the Windsor decision to rule that the Constitution required finding a right to same-sex marriage. That decision came just before Christmas, in the deeply red state of Utah. (In a sign that public opinion truly is changing, a statewide poll conducted by the Salt Lake City Tribune found respondents evenly split on the question of whether same-sex couples in Utah should be allowed to marry.) Utah officials were unable to halt same-sex weddings until their appeal travelled all the way up the judicial chain to the Supreme Court, which granted a highly unusual interim stay after some thirteen hundred gay weddings had already taken place.
On January 14th, another federal district court, in Oklahoma, reached a similar conclusion, finding that, in light of Windsor, the state's constitutional amendment outlawing gay marriage violated the U.S. Constitution.
Roberta Kaplan, the attorney who argued the Windsor case in the Supreme Court, explained how the ruling had led to results beyond what the Court may have intended originally. "It's not the holding in Windsor that is so controlling right now," she said. "It's the logic and reasoning behind the Court's decision--namely, that gay people deserve the same legal rights and protections as everyone else."
The expanding reach of Windsor was visible in another decision, last week, in an appellate-court case that seemed at first of interest only to lawyers. On January 21st, the Ninth Circuit Court of Appeals ruled that prospective jurors could not be excluded on the basis of their sexual orientation. The court based its opinion on the Windsor decision, ruling that the Supreme Court had applied a new, heightened level of scrutiny for equal protection based on sexual orientation, even if it had not expressly articulated that new standard. The judges went on to argue that, under the standard applied in Windsor, the government could not treat people differently based on their sexual orientation. The decision made the Ninth Circuit, which covers the western United States, the first circuit court, post-Windsor, to grant "heightened scrutiny" to sexual orientation--making it far less likely that laws which discriminate on these grounds will survive constitutional challenges.
Nevada's same-sex-marriage ban has already been challenged in the Ninth Circuit, in a case called Sevcik v. Sandoval, brought by Lambda Legal. The state of Nevada filed its briefs defending the ban on the same day as the circuit court's ruling in the jury-selection case. Three days later, on January 24th, Nevada's Attorney General, Catherine Cortez Masto, said that she would reconsider her defense of the ban, noting that the circuit-court decision had rendered Nevada's argument "no longer tenable." A ruling in favor of marriage equality from the Ninth Circuit in the Nevada case is therefore highly likely. [The New Yorker, 1/27/14 ]