VA attorney general refuses to defend gay marriage ban


This is of course good news for the pro gay rights side of which I am a member, but does raise a couple of questions in my mind.

First a GQ type question: What are the practical effects of this? Does this mean that as soon as a gay couple sues the state to allow them to marry the AG just sits back and says they win without contest, effectively ending the ban, or does some other group have standing to defend the ban in court?

Second, this was a pretty ballsy move for a new attorney general who won by just 164 votes out of 2.2 million cast. While recent polls show more people support than oppose gay marriage in VA, this end run around a constitutional amendment sort of move that will really galvanize the opposition. I don’t know what VA law is concerning such things, but I assume that someone in the house will file a motion to have Herring removed from office (probably unsuccessfully). Also this might cause a backwards step in a trend of VA transitioning from reliably red to purple to reliably blue.

Any other thoughts?

If you recall, this is pretty much what happened in CA. There was a challenge to the Constitutional Amendment (prop 8) and the state decided not to defend itself. the SCOTUS found that citizen groups still had standing to sue in court.

As a practical matter, my understanding is that the county clerks are still parties to the lawsuit, so I guess they have to get lawyers. But it can still be dealt with on the merits. It would not surprise me to see the General Assembly attempt to provide counsel in support of the laws.

It bothers me when AGs (of any party) do this sort of thing, but this one seems particularly galling where the office that, presumably, was coordinating the defense is going to switch sides mid-suit. That strikes me as creating all sorts of ethical problems.

As many ethical problems as continuing a frivolous defense? Assuming, for the sake of argument, that Herring is correct. Anyway, if you make attorney general a political office, attorney generals are going to start behaving like politicians.

ETA: Nitpick - Herring actually won by 907 votes according to the recount.

Well, no fair-minded person really would claim that defending the law is frivolous. Futile, perhaps.

But I’m not suggesting that the AG has an obligation to defend the laws of the Commonwealth (although I think he does) or that this is unprecedented (it clearly isn’t). My concern is more tangible. I presume that the AG’s office has coordinating and directing the defense effort (at the very least, they’ll have been involved in it). Now the lawyers in the office (the real lawyers, not the politicians who just took office) are supposed to argue against their former codefendants. This is different from the AG refusing to defend that laws from the outset. I think it poses a genuine ethics problem.

As far as I can tell, there is no current litigation so it’s not like he is reversing course in the middle of oral arguments. Besides, there are bound to be plenty of assistant AGs who haven’t been involved in the litigation. I agree with you to the extent that he’s apparently siding with the plaintiffs, rather than just refusing to defend the law.

There are two cases ongoing, one in the Western District (Harrisonburg), Harris v. McDonnell, and one in the Eastern District (Norfolk), Bostic v. McDonnell. In fact, the Commonwealth (under the old AG) intervened in the Norfolk case in August to defend the Amendment, so it’s clearly a problem with that one. The AG’s office got the governor dismissed from the Harrisonburg suit, so it looks like that one only has the City Clerk as a party.

Also, what about imputed conflicts? I’m sure there are different rules for the AG’s office, but in a regular litigation, a law firm would be disqualified in a heartbeat.

Here’s a very good explanation of the players and legal background leading up to this, including who is suing who:

As for galvanizing the opposition, Virginia has become alot more liberal on gay marriage since that referendum. I don’t know whether he can be impeached, but I don’t see it happening.

I am not any sort of legal scholar, but I would assume that anyone who violates any law has standing to challenge it.

For example, suppose two gays get married. Some private business refuses to recognize them as being married, and does not treat them as they do other married couples. They sue. The business responds that their marriage is banned under state law, therefore they are not legally married. They respond that that particular ban is not constitutional, therefore they are legally married. Then everyone has standing and the courts rule.

It’s dereliction of duty on the part of the Attorney General. When one goes into the field of law enforcement (the AG is the top law enforcement officer of the state) one has to enforce laws even one dislikes.

This is an ethical question one must ponder before entering that field of endeavor: Can I enforce laws I don’t agree with? If the answer is no, choose another career path.

Back in the 1980’s you don’t think I enjoyed enforcing the 55mph speed limit on freeways built for 70+, do you? But the genius of a republic is that laws can be changed. And until they are, they are the law.

If that AG can’t enforce the law like he is charged to do, he should resign and perhaps work to change that law.

There’s a difference between laws that one dislikes and laws that one believes to be unconstitutional.

Also a difference between the AG and a cop.

True on both accounts but then again not really. One of the AG’s duties is to enforce the laws of the state he is elected in. And in cases like this it’s not up to him to worry about whats constitutional under the U.S. Constitution, only what’s constitutional under the states constitution.

There has been this trend, lately, for leaders to say they aren’t going to enforce laws that have been democratically passed in our chambers of representation. Obama has done it with his own stupid law for kripes sake.

This trend is dangerous and a huge middle finger to our form of self governance.

I agree with you about all that.

I just don’t think it’s as egregious as someone refusing to enforce laws that they don’t like. (Obama has actually done some of that too, WRT the ACA, but also WRT to criminal justice system, in doing an end run around mandatory sentencing laws, and others as well IIRC, but this thread is about the VA AG.)

But who would they be suing in this case?


Hell no. The U.S. Constitution is supreme. It is the law of the land, in Virginia and everywhere else. No state official may violate it. They are bound to uphold it. When state law, or even the state constitution, conflicts with it, they must yield.

You couldn’t be more wrong.

To enforce an unconstitutional law is a middle finger to the Constitution. Leaders are REQUIRED not to enforce such a law.

I don’t know if anyone is actually suing in this particular case. The OP was speculating about what might happen.

In the scenario I’m postulating, the gay couple would be suing the business. The ruling in that case would address whether the ban is constitutional or not.


He’s refusing to enforce a law he believes is unconstitutional, not just one he dislikes. He is required to follow the Constitution first.

Not if the law is unconstitutional. It can be struck down.

He IS enforcing the law - the law of the land, which is the Constitution. His oath of office includes a pledge to support the Constitution of the U.S. That always comes first.

The business doesn’t make laws, nor is it therefore bound by the Constitution. How could you sue it for following the law?

What you’d need to do is sue the state for not granting a marriage license, I think. Which is what’s happening in Virginia, I think.

He’s not refusing to enforce the law. He’s refusing to mount a defence to the constitutionality of that law, which is currently being challenged in court. That’s a very different thing.

I’m not sure how he’d ever be in a position to “enforce” what amounts to a refusal to extend marriage rights to gays.

Incorrect. His oath of office requires him to uphold both the VA and the US constitutions. Where they are in conflict I would assume the US constitution takes precedence.