# VA attorney general refuses to defend gay marriage ban **URL:** \ **Category:** Great Debates\ **Created:** [January 23, 2014, 4:52pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535 "2014-01-23T16:52:27Z")\ **Posts on this page:** 20\ **Page:** 10
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 28, 2014, 4:01pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/181 "2014-01-28T16:01:58Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Huh? I don’t want to recall anyone. I’m saying that the (probable) failure of any recall petition should be indicative of the will of the people to have the AG do his job as he sees fit. OK. That’s certainly a reasonable position to take. Although it doesn’t seem that discussions about, say, Scott Walker, took that same position. And in Walker’s case there was an ACTUAL failure of a recall vote. But perhaps the two cases are dissimilar. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 28, 2014, 4:03pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/182 "2014-01-28T16:03:07Z")
> [@Really\_Not\_All\_That\_Bright](#): > > … other than the petition procedure under discussion. See my edit to post #178. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 28, 2014, 4:03pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/183 "2014-01-28T16:03:35Z")
> [@Bricker](#): > > Virginia has no real recall provisions for state officers. So by what mechanism do you imagine that recall happening, exactly? > > ETA: someone above offered up § 24.2-233, but that section vests the action in a circuit court – of which there are as many as there are counties in Virginia. There is no precedent in caselaw, but it’s virtually certain that a circuit court, with jurisdiction over only one county, could not adjudicate a recall petition involving the governor. It says the officer must _reside_ within the jurisdiction of the circuit court, not that the court’s jurisdiction must be coextensive with the officer’s. So presumably the court with jurisdiction for Richmond and its environs will do (does Herring live there?) ETA: I wasn’t involved much in the Walker threads, but I certainly distinguish your state’s 10% requirement from Wisconsin’s plurality-or-more. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [January 28, 2014, 4:03pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/184 "2014-01-28T16:03:49Z")
> [@ElvisL1ves](#): > > Only if the reasoning were “You have to be married by a state first before you can be subjected to disparate treatment, but if you aren’t married _first_, then it’s just too bad your state doesn’t allow it, ain’t it?” That would be pretty silly, and, to repeat, against the principle they’ve already ruled in favor of. It would be helpful for me if you could articulate how the Court has ruled in favor of the principle that states are required to recognize same-sex marriages. It would also be helpful if you did it with something more in depth than talismanic incantactions of particular Amendments. I need help seeing how there isn’t a distinction between “the federal government cannot injure a subset of groups that a state seeks to benefit in a area of traditional state concern” and “the state must provide that benefit to that group.” > [@](#): > > If you’re concluding that Virginia should continue spending resources on a case on the outside chance that a justice might change his/her mind, then please say so. Also please say which member of the majority you would expect that to be. I don’t think it a question of “changing his/her mind” becuase I don’t think they’ve ruled on it. I’ve already (somewhere on here) discussed at length my theory on how the lineup in _Perry_ suggests that Kennedy is not prepared to take the step that you think they’ve already taken and that, in fact, he actively does not want to take that step. The short of it is that if Kennedy has shown an inclination to strike down Prop 8 on the merits (and especially if he was willing to do it on more expansive grounds than the 9th Circuit opinion), Breyer, Kagan, and Ginsburg would not have joined a decision getting rid of the case on standing grounds. ---
**Author:** ![lance\_strongarm](https://avatars.discourse-cdn.com/v4/letter/l/87869e/32.png) [@lance\_strongarm](https://boards.straightdope.com/u/lance_strongarm)\ **Post date:** [January 28, 2014, 4:06pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/185 "2014-01-28T16:06:13Z")
> [@Bricker](#): > > And in Walker’s case there was an ACTUAL failure of a recall vote. BTW, polls showed that many voters voted against the recall simply because they didn’t think a recall should have been invoked, not because of their feelings about the governor or his actions. 60% said recalls should only happen after official misconduct (crime or ethical concerns) and another 10% said there should never be a recall. > **[How Scott Walker won the Wisconsin recall election](http://www.cbsnews.com/news/how-scott-walker-won-the-wisconsin-recall-election/)** > > Walker became first governor to survive a recall election with strong support from his base and a majority of independents ---
**Author:** ![Cyros](https://avatars.discourse-cdn.com/v4/letter/c/a698b9/32.png) [@Cyros](https://boards.straightdope.com/u/Cyros)\ **Post date:** [January 28, 2014, 4:20pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/186 "2014-01-28T16:20:47Z")
n/m. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [January 28, 2014, 4:22pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/187 "2014-01-28T16:22:03Z")
> [@Bricker](#): > > Sure. > > In the Fourth Circuit, there is no binding precedent that says, “A state’s forbidding same-sex marriage violates the U.S. Constitution.” The existence of that precedent would stand in direct conflict with Section 15-A of the Virginia Constitution. > > Right now, Herring’s balance is between the plain text of the Virginia constitution and his view of what federal constitutional law should say. That’s not a direct conflict in the same way that direct, on-point federal decisional law would be. But if there was a “direct, on point federal decisional law”, how would this case even exist? I haven’t looked that deeply into the issue, so maybe I misunderstand, but I have no idea, if there was precedent, how the AG would even argue the case in the first place. If the conflict was that “direct”, the ruling would already take precedent wouldn’t it? > [@Bricker](#): > > The AG in Virginia is an independent constitutional officer. His duty is to represent the Commonwealth of Virginia in, inter alia, civil matters. The Commonwealth is his client. The Commonwealth has made very clear that its will is to define marriage as only between one man and one woman. So the standard should be that he should treat the matter like any ethical lawyer: if there is a colorable legal defense of that position, he should make it. Is “colorable” like the “reasonable” standard I used earlier? And, to go back to that again, why would the Commonwealth want a person arguing their case who clearly doesn’t believe in it at all, when there are other parties who could? Outside of forcing an AG to make arguments he doesn’t believe in, what is the gain? And can we drop the “nobody will defend the law!!!” cries of woe, because in reality, the Norfolk Circuit Court Clerk George Schaefer and Prince William County Circuit Court Clerk Michele McQuigg will defend the ban in court. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [January 28, 2014, 4:28pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/188 "2014-01-28T16:28:59Z")
> [@Falchion](#): > > It would be helpful for me if you could articulate how the Court has ruled in favor of the principle that states are required to recognize same-sex marriages. It would also be helpful if you did it with something more in depth than talismanic incantactions of particular Amendments. It would be helpful if you wouldn’t dismiss the constitutional principles by which a case was decided as “talismanic”, or even if you would accept that the case was actually decided. > [@](#): > > I need help seeing how there isn’t a distinction between “the federal government cannot injure a subset of groups that a state seeks to benefit in a area of traditional state concern” and “the state must provide that benefit to that group.” Then you need help seeing what equal protection of the laws _means_. Granting marriage rights to some but not others on the basis of gender is such a violation, as both the legal technicalities of the DOMA decision and the extensive discussion of the common sense of the principles behind it, contained therein, confirm. > [@](#): > > I don’t think it a question of “changing his/her mind” becuase I don’t think they’ve ruled on it. You are positing that a Justice who voted in favor of equal protection in the DOMA case might vote against it in a follow-up case. That’s a change of mind. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [January 28, 2014, 4:49pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/189 "2014-01-28T16:49:31Z")
> [@ElvisL1ves](#): > > It would be helpful if you wouldn’t dismiss the constitutional principles by which a case was decided as “talismanic”, or even if you would accept that the case was actually decided. > > Then you need help seeing what equal protection of the laws _means_. Granting marriage rights to some but not others on the basis of gender is such a violation, as both the legal technicalities of the DOMA decision and the extensive discussion of the common sense of the principles behind it, contained therein, confirm. I’m not dismissing the principles as talismanic. I’m dismissing your argument that DOMA struck down all same-sex marriage bans “becuase equal protection” as being nothing more than a talsimanic invocation of an amendment. Maybe you’re saying that same-sex marriage bans are a violation of equal protection on the basis of gender and that, if I disagree, I don’t understand equal protection. Fine, that’s a colorable argument (although, I don’t believe any court has ever agreed that marriage laws constitute impermissible gender discrimination). But the conversation is about what the Court did in Windsor and whether or not that decided the next issue. I say the next issue (state bans) is still the next issue. Maybe you could point to the section of Windsor that holds that the state must recognize marriages of all couples, irrespective of gender. > [@](#): > > You are positing that a Justice who voted in favor of equal protection in the DOMA case might vote against it in a follow-up case. That’s a change of mind. It’s not really “changing your mind” to say that one thing violates equal protection but another thing doesn’t. ---
**Author:** ![hajario](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hajario/32/171_2.png) [@hajario](https://boards.straightdope.com/u/hajario)\ **Post date:** [January 28, 2014, 4:57pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/190 "2014-01-28T16:57:10Z")
> [@pkbites](#): > > You’re going to make the straw man defense regardless of the scenario. If it were gun laws being challenged and the AG refused to defend Virginias laws saying they were unconstitutional per the 2nd Amendment, it would be the same dereliction on his behalf. Nice try. I don’t like guns. I would never own one. I would also never try to ban them from people who have a right to own them. If the CA electorate voted to totally ban hand guns and the AG here didn’t try to defend that law because it is a clear rights violation that he couldn’t win, I’d be fine with it. > [@](#): > > Irrelevant. The issue could be anything. 2 weeks into this mans position and he’s orchestrating social engineering against the will of the very electorate that put him in his position? This and skewed court decisions seems to be a few of the only ways the left can get their way as when these issues are up for an actual vote they tend to lose. You keep trying, and failing, to make this a left versus right issue which it isn’t. The left and right in this country are equally hypocritical all the time which is why I am a life long registered non-partisan. I have missed voting in one election in my life. Social engineering? Seriously? For like the thousandth time, it doesn’t matter what the voters want if it’s a rights violation. The voters at one time wanted separate but equal to be the law of the land. It might still be the case in some places if the courts didn’t step in. Are you ashamed of your views? Do you think that SSM should be legal? ---
**Author:** ![lance\_strongarm](https://avatars.discourse-cdn.com/v4/letter/l/87869e/32.png) [@lance\_strongarm](https://boards.straightdope.com/u/lance_strongarm)\ **Post date:** [January 28, 2014, 5:02pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/191 "2014-01-28T17:02:04Z")
> [@pkbites](#): > > If it were gun laws being challenged and the AG refused to defend Virginias laws saying they were unconstitutional per the 2nd Amendment, it would be the same dereliction on his behalf. > > Irrelevant. The issue could be anything. 2 weeks into this mans position and he’s orchestrating social engineering against the will of the very electorate that put him in his position? One more time: The AG takes an oath to uphold the U.S. Constitution, which is supreme. > [@](#): > > This and skewed court decisions seems to be a few of the only ways the left can get their way as when these issues are up for an actual vote they tend to lose. Funny to hear you say that after invoking the 2nd amendment. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [January 28, 2014, 5:08pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/192 "2014-01-28T17:08:16Z")
> [@Falchion](#): > > I’m not dismissing the principles as talismanic. I’m dismissing your argument that DOMA struck down all same-sex marriage bans “becuase equal protection” as being nothing more than a talsimanic invocation of an amendment. I’m attempting to help you understand the principle behind the DOMA ruling. You’re focused entirely on finding technical loopholes in it, by way of claiming it didn’t really decide what it decided. > [@](#): > > Maybe you could point to the section of Windsor that holds that the state must recognize marriages of all couples, irrespective of gender. Sigh … > [@](#): > > The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment To repeat, to assert that forbidding disparate treatment applies only to actual marriages, but not to permitting marriages, would be pretty damn silly. Yet that does appear to be your argument. [/quote] It’s not really “changing your mind” to say that one thing violates equal protection but another thing doesn’t. [/QUOTE] If you invoke a principle in one matter and deny it in another, then what the hell else can it be? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 28, 2014, 5:23pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/193 "2014-01-28T17:23:52Z")
> [@ElvisL1ves](#): > > I’m attempting to help you understand the principle behind the DOMA ruling. No, you’re not. You’re attempting to make it say something which could plausibly be inferred from its reasoning, but which it does not _actually say_. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [January 28, 2014, 5:33pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/194 "2014-01-28T17:33:07Z")
If it is absurd to say that the opposite conclusion could reasonably be reached in what is effectively the same damn situation, then yes, that’s what it concludes. A few of you are determined to find that it’s a states-rights case, _even though_ it was decided on equal protection and due process. That’s most puzzling. ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [January 28, 2014, 5:47pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/195 "2014-01-28T17:47:31Z")
> [@Miller](#): > > By that logic, how are defense attorneys meant to function? Either they believe there is reasonable doubt that their client committed a crime, or they try to get them convicted with the least punishment possible. Lying to the court doesn’t become okay because you’re a lawyer, and that’s exactly what you’d have to be doing to argue someone isn’t guilty when you believe there is no reasonable doubt that they are. Willingly arguing something you don’t believe is lying. As stated upthread, a defense lawyer is not allowed to lie to the jury. And lawyers can recuse themselves from cases if their client confesses to them. It seems like the above is the actual intent of the system, even if there are some lawyers who apparently think otherwise. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 28, 2014, 5:49pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/196 "2014-01-28T17:49:49Z")
> [@Really\_Not\_All\_That\_Bright](#): > > It says the officer must _reside_ within the jurisdiction of the circuit court, not that the court’s jurisdiction must be coextensive with the officer’s. So presumably the court with jurisdiction for Richmond and its environs will do (does Herring live there?) Yes, that’s what it says. But see 61 Virginia Law Review 1799 at 1818. The recall of state officers would, under the plain reading of the code, be subject to a jury trial from that county, with a county-level circuit court judge presiding; the recall position would be argued by the local Commonwealth’s Attorney. The law review article takes the position that this is an absurd result, ironically of the same caliber I am pointing out now: Herring’s state-wide election could be undone by a jury in the city of Richmond. And although the displaced official can appeal to the Virginia Supreme Court, it’s an appeal for a writ of error and supersedeas on the record made in the trial court – if the “charge” is neglect of duty, that’s a fact-based decision not really reviewable by the Virginia Supremes. Are you telling me that if such an effort went forward, you’d regard it as legitimate? You wouldn’t argue just the point I’m making now, that ten percent of the voters and one county’s jury should not be able to displace the man elected by the entire state? ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [January 28, 2014, 5:50pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/197 "2014-01-28T17:50:53Z")
> [@lance\_strongarm](#): > > BTW, polls showed that many voters voted against the recall simply because they didn’t think a recall should have been invoked, not because of their feelings about the governor or his actions. 60% said recalls should only happen after official misconduct (crime or ethical concerns) and another 10% said there should never be a recall. > > [How Scott Walker won the Wisconsin recall election - CBS News](http://www.cbsnews.com/news/how-scott-walker-won-the-wisconsin-recall-election/) And convincing people of that was a brilliant strategy by Walker, knowing full well he couldn’t get people agree with his actions directly. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 28, 2014, 5:52pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/198 "2014-01-28T17:52:28Z")
> [@BigT](#): > > And lawyers can recuse themselves from cases if their client confesses to them. What makes you believe that? That’s not true at all. A lawyer might be permitted to withdraw from a case if their client simultaneously confessed guilt to them and insisted on testifying and proclaiming his innocence, sure. But a defense lawyer cannot simply withdraw because his client admits guilt. That’s utter fantasy. ---
**Author:** ![lance\_strongarm](https://avatars.discourse-cdn.com/v4/letter/l/87869e/32.png) [@lance\_strongarm](https://boards.straightdope.com/u/lance_strongarm)\ **Post date:** [January 28, 2014, 6:19pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/199 "2014-01-28T18:19:47Z")
> [@BigT](#): > > And convincing people of that was a brilliant strategy by Walker, knowing full well he couldn’t get people agree with his actions directly. Whether it was Walker’s doing or not, it proves the recall wasn’t about Walker’s policies. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 28, 2014, 6:34pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/200 "2014-01-28T18:34:56Z")
> [@Bricker](#): > > Are you telling me that if such an effort went forward, you’d regard it as legitimate? You wouldn’t argue just the point I’m making now, that ten percent of the voters and one county’s jury should not be able to displace the man elected by the entire state? I don’t think it’s a very _good_ procedure.\* In fact, I think the absence of any removal procedure (other than impeachment, which I gather applies only to the Governor among executive officers) is a glaring omission from the Virginia Constitution and you really ought to fix that. I’m not sure it necessarily follows that this would be a jury trial, absent some constitutional provision I may have overlooked. \*The fact that convictions for drug or hate crimes are automatically disqualifying while others aren’t is simply bizarre. The legislature seems to have thought that kicking an old lady down the stairs was less of an impediment to doing one’s duty as an elected official than smoking a joint. [Previous page](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535.md?page=9) [Next page](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535.md?page=11)