McAuliffe won't help GOP defend gay marriage ban
McAuliffe won't help GOP defend gay marriage ban
By Julian Walker
The Virginian-Pilot
© January 28, 2014
RICHMOND
Republicans upset over Attorney General Mark Herring's decision to fight, rather than protect, Virginia's same-sex marriage ban won't get any help from Gov. Terry McAuliffe in defending the law. ... Monday afternoon, McAuliffe declined Del. Bob Marshall's request for him to appoint outside counsel on a federal challenge to that law scheduled for a hearing Thursday in U.S. District Court in Norfolk.
Meanwhile, other Herring critics have suggested a more punitive response: impeachment. The National Organization for Marriage called for Herring's impeachment last week, and over the weekend, the conservative Bearing Drift blog posted a draft of a purported Herring impeachment resolution that the website said two House of Delegates members were considering carrying.
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The lawsuit, to be heard Thursday in Norfolk, was filed by two gay couples, one from Norfolk. It claims the state's ban violates the U.S. Constitution's equal protection and due process clauses. ... McAuliffe, in response to a recent letter from Marshall, R-Prince William County, declined to hire another lawyer on the case, reasoning it's being "vigorously and appropriately defended" by attorneys for the clerks of court in Norfolk and Prince William. ... The Prince William clerk is being represented by the conservative legal group Alliance Defending Freedom, and Norfolk's clerk has a private attorney paid by the state's Division of Risk Management.
With or without McAuliffe, Marshall, an architect of the 2006 state constitutional amendment banning same-sex marriage, said Monday that he plans to pursue a Virginia State Bar complaint against Herring for neglecting his duty to uphold state law.
Pilot writer Bill Sizemore contributed to this article.
Julian Walker, 804-697-1564, [email protected]
Lawmaker challenges Mark Herring's decision on same-sex marriage
Posted: Monday, January 27, 2014 9:49 pm
By Markus Schmidt and Olympia Meola | Richmond Times-Dispatch
RICHMOND — Gov. Terry McAuliffe will not appoint special counsel to defend the state’s ban on same-sex marriage. ... He announced his decision in a letter Monday to Del. Bob Marshall, R-Prince William County, who had urged the governor to appoint special counsel to defend the state and its constitutional amendment in this week’s court hearing in Norfolk.
Also Monday, Marshall said that he is working with lawyers to file a complaint with the Virginia State Bar against Attorney General Mark Herring over his refusal to defend Virginia’s same-sex marriage ban and for siding with the plaintiffs. ... As for the Virginia State Bar complaint against Herring: “I want the same discipline meted out against him that would be meted out against any attorney similarly situated,” Marshall said in an interview. “And they better not go soft because he is the attorney general,” he said.
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Carl Tobias, professor at the University of Richmond School of Law, said that he does not see a strong basis for a bar complaint against Herring. ... “The same-sex marriage ban will be adequately defended by the two clerks who have able counsel and the judge said that the summary judgment hearing set for Thursday will proceed as planned,” Tobias said.
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Herring’s decision does not change or overturn Virginia’s same-sex marriage ban. Under a directive from his office, court clerks around Virginia are still prohibited from handing out marriage licenses to same-sex couples.
McAuliffe won't help GOP defend gay marriage ban (Original Post)
mahatmakanejeeves
Jan 2014
OP
“Bob Marshall is not, and never has been, an attorney.”
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A private attorney’s obligation is to represent the interests of his or her client, regardless of belief one way or the other about that client’s guilt. An attorney general’s obligation, on the other hand, is to see that justice is done by upholding the U.S. Constitution. If the “client,” which is in this case the legislature and people of Virginia, is legally in the wrong, it is the obligation of the attorney general to take the side of the controlling law at that time – not to represent the position of the “client,” as Marshall is presuming.
Charlottesville attorney Lloyd Snook explains this, and some of the other misconceptions troubling Herring’s detractors, in an interview yesterday with Coy Barefoot on Inside Charlottesville. Snook makes it clear that there are constraints on an attorney general required to take a position on a legal challenge to state law:
The state has become involved {in this case} because it’s been sued with the allegation that the state’s ban on same sex marriage violates the federal Constitution, based primarily on recent changes in the law. When the constitutional amendment was first adopted six or seven years ago, we did not have the U.S. Supreme Court saying, as they said last summer, that the Fifth Amendment, in that case, prohibits a state from discriminating against same sex couples.
…When the judge asks the attorney general’s office on Thursday, in oral arguments…”Counsel, are you telling me that the U.S. Supreme Court, in the Defense of Marriage Act case last year, didn’t say that this ban on same sex marriage violates the Constitution?” And that attorney’s got to sit there and say either “Yes, that’s what I’m saying,” or “No, that’s not what I’m saying.”
There’s no way of avoiding the fact that every court – “in both liberal areas and conservative areas” – that has looked at this issue since the SCOTUS decision in June that overturned DOMA has interpreted that decision as saying that it’s a violation of the U.S. Constitution to discriminate against same sex couples. That interpretation is now controlling law, and Herring is not at liberty, even if he wanted to, to pretend otherwise.
One of the things he can’t do is he can’t take a position that he knows to be garbage. He can’t take a position that he does not believe…the issue is not “does he like it,” but “does he believe it to be correct?” The issue is does he believe it to be constitutional. There are plenty of instances where attorneys general and commonwealth’s attorneys have argued for a result that they don’t personally like, but which they believe to be constitutional. For example, the death penalty. I know prosecutors who are morally opposed to the death penalty, but they nonetheless will defend the death penalty statute if somebody tries to argue that it’s unconstitutional.
Herring can’t uphold his oath of office and at the same time engage in intellectual dishonestly by answering the judge’s question with what he knows is a lie.
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Had he read Herring’s memorandum or any of the other documents filed with the District Court in Bostic v. Rainey, Marshall would know that his amendment will be vigorously defended by other parties, including counsel for Norfolk County Court Clerk George Schaefer and Prince William County Circuit Court Clerk Michele McQuigg, counsel for The Family Foundation of Virginia, and counsel for something called “Professors in Support of Defendants’ Motions for Summary Judgment,” not to mention the many briefs filed while Marshall-Newman proponent Ken Cuccinelli was still in office. It’s unlikely that they will have come up with any arguments that haven’t already been heard and dismissed by 9:00 am Thursday, but our attorney general wouldn’t have been able to solve that problem even if he wanted to.
Conservatives inflamed by Herring’s same-sex marriage declaration
Wednesday, Jan. 29, 2014 by Trevor Baratko
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Loudoun County Republican activist Patricia Phillips, who contested Mr. Herring in his 2011 state Senate race, questioned why the Democratic attorney general vacated the General Assembly. ... “That's where laws are made,” Ms. Phillips said.
Speaking to whether she viewed same-sex marriage in the same civil rights vein as integrated school and inter-racial marriage – comparisons used by Mr. Herring – Ms. Phillips said she doesn't believe the comparisons are apt. ... “You can't hide your skin color,” she said.
State Del. Bob Marshall, an outspoken Christian conservative from Northern Virginia, said Mr. Herring “sprung this, like a Pearl Harbor attack, on the people of Virginia.”
Speaking on WAMU's The Kojo Nnamdi Show, Mr. Marshall, similar to Ms. Phillips, dismissed any claims that a ban on gay marriage is equivalent to past prohibitions like integrated schools or inter-racial marriage.
Contact the writer at [email protected].
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