# 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:** 4
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [January 24, 2014, 4:38am UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/61 "2014-01-24T04:38:41Z")
> [@Falchion](#): > > Look, maybe I’m in a minority, and that’s fine. As far as I’m concerned, the AG is a lawyer who has an obligation to his client (Virginia) to represent her policies in court. Her policies are, properly, set by the legislature, the people, or the appropriate regulatory agency. As a lawyer, I’m ethically required to zealously advocate for my client, whether or not I think their position will win and certainly whether or not I think it should win. If I can’t do that, I don’t take on the representation. I view the AG in a similar light. There are exceptions (I wouldn’t think, for example, the AG is required to support a local prosecutor in an appeal of an obviously wrongful conviction; but that’s becuase criminal prosecutions are different and it doesn’t create the same set of separation of powers problems. I would object, however, if the AG refused to defend, on appeal, any conviction for the crime of, let’s say, carrying a concealed weapon at a public university becuase he thinks it’s unconstitutional). … The General Assembly passes laws, the AG defends the laws, the Court determines the validity of the laws. That’s how it should work > > . The attorney general is a constitutional officer who is elected in his own right. He is a political official. He is not subordinate to the legislature. So he isn’t merely the state’s counsel. He has independent authority to judge the constitutionality of an enacted law. ---
**Author:** ![wolfpup](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wolfpup/32/10618_2.png) [@wolfpup](https://boards.straightdope.com/u/wolfpup)\ **Post date:** [January 24, 2014, 4:43am UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/62 "2014-01-24T04:43:58Z")
> [@pkbites](#): > > Do you believe mentally ill people or felons have the right to own firearms? The U.S. Constitution is silent on that. What if a severely mentally ill felon was challenging the law that prohibits him his right of bearing arms and this AG decided not to defend the law. I bet you’d be screaming your head off over it. Seems to me that **Bryan Ekers** is expressing a rationally grounded point of view, while you keep going on about dogmatic principles that would seem to justify – by extrapolation of your logic – your citizen’s right to “fire” the President of the United States for exercising his constitutionally authorized executive discretion to postpone parts of the ACA. A bit simplistic, IMHO, and entirely ideological. The lunatic Cuccinelli lost. Deal with it. ---
**Author:** ![Smapti](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smapti/32/17938_2.png) [@Smapti](https://boards.straightdope.com/u/Smapti)\ **Post date:** [January 24, 2014, 4:54am UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/63 "2014-01-24T04:54:11Z")
> [@pkbites](#): > > In Wisconsin Peace Officer is a Public Office. > > I found the national speed limit to violate the 10th Amendment. What if I just decided not to enforce it? > > I find most gun laws to violate the 2nd Amendment. What if I didn’t arrest someone carrying a concealed pistol? > > I find abortion violates the constitutional rights of an unborn human being. What if I refused to arrest trespassing protestors at a clinic? > > I’d of been fired, and rightfully so! Not enforcing a law is the same as an AG not defending one: it’s a refusal to do the job one was hired to do! If it’s his professional opinion that the law is undefensible, then wouldn’t it be a violation of professional ethics for him to do so anyway? ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [January 24, 2014, 5:05am UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/64 "2014-01-24T05:05:08Z")
> [@Smapti](#): > > If it’s his professional opinion that the law is undefensible, then wouldn’t it be a violation of professional ethics for him to do so anyway? Maybe it’s like sports - he’s expected to try his best anyway. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [January 24, 2014, 5:19am UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/65 "2014-01-24T05:19:43Z")
> [@John\_Mace](#): > > 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. Other way around. The S.Ct. found that the private groups defending the law [lacked](http://articles.latimes.com/2013/jun/26/news/la-pn-prop-8-supreme-court-ruling-20130626) standing. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [January 24, 2014, 5:25am UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/66 "2014-01-24T05:25:01Z")
> [@pkbites](#): > > Where does this AG get the authority to declare what’s constitutional and whats not? That is a role for the [State and U.S.] supreme courts to decide. That’s part of the separation of powers our form of government is based on. My thought exactly. Isn’t there a presumption that a law is constitutional until A COURT rules that it is not? ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [January 24, 2014, 5:36am UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/67 "2014-01-24T05:36:49Z")
> [@Saint\_Cad](#): > > My thought exactly. Isn’t there a presumption that a law is constitutional until A COURT rules that it is not? [There is](http://www.justice.gov/olc/nonexcut.htm), but that mostly refers to who has the burden of proof once the dispute gets to court. The extent to which an executive authority can substitute his or her judgment for that of the legislature (or the law-making electorate) as to the constitutionality of a law is fuzzier. ---
**Author:** ![pkbites](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pkbites/32/204_2.png) [@pkbites](https://boards.straightdope.com/u/pkbites)\ **Post date:** [January 24, 2014, 6:16am UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/68 "2014-01-24T06:16:00Z")
> [@Smapti](#): > > If it’s his professional opinion that the law is undefensible, then wouldn’t it be a violation of professional ethics for him to do so anyway? The violation of ethics came when he sought a job where he knew there would be laws he wouldn’t like and wouldn’t like to defend or prosecute, and then accepted that role and refused to do his job. I’ve explained before this is something a person has to think about before they go into that field. This would be an entirely different argument if a high court had ruled the law unconstitutional. It hasn’t. This pompous AG has decided to be judge, jury, and executioner in defiance of the will of the people. ---
**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 24, 2014, 7:03am UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/69 "2014-01-24T07:03:53Z")
> [@pkbites](#): > > The violation of ethics came when he sought a job where he knew there would be laws he wouldn’t like and wouldn’t like to defend or prosecute, and then accepted that role and refused to do his job. I’ve explained before this is something a person has to think about before they go into that field. > > This would be an entirely different argument if a high court had ruled the law unconstitutional. It hasn’t. This pompous AG has decided to be judge, jury, and executioner in defiance of the will of the people. Do you admit that you were wrong about him not enforcing laws? ---
**Author:** ![pkbites](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pkbites/32/204_2.png) [@pkbites](https://boards.straightdope.com/u/pkbites)\ **Post date:** [January 24, 2014, 7:10am UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/70 "2014-01-24T07:10:26Z")
> [@hajario](#): > > Do you admit that you were wrong about him not enforcing laws? What are you talking about? He’s not upholding nor defending the law that was legally put into place. If it’s found to be unconstitutional via the proper channels he’ll have a valid, ethical excuse for not defending it. Until then he’s simply forcing his will over that of the people collectively. ---
**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 24, 2014, 7:21am UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/71 "2014-01-24T07:21:21Z")
Of course he’s upholding the law. Are same sex couples getting married in VA? He was talking about a hypothetical that might not even happen. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [January 24, 2014, 11:21am UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/72 "2014-01-24T11:21:52Z")
> [@wolfpup](#): > > As already said, declining to defend a law in a hypothetical legal challenge is not the same as failing to enforce it. > [@hajario](#): > > He was talking about a hypothetical that might not even happen. What is this “hypothetical” challenge you are talking about? The case is ongoing. The AG filed a brief yesterday changing sides and attacking the positions of the party he represents. ---
**Author:** ![Smapti](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smapti/32/17938_2.png) [@Smapti](https://boards.straightdope.com/u/Smapti)\ **Post date:** [January 24, 2014, 11:38am UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/73 "2014-01-24T11:38:02Z")
> [@pkbites](#): > > The violation of ethics came when he sought a job where he knew there would be laws he wouldn’t like and wouldn’t like to defend or prosecute, and then accepted that role and refused to do his job. I’ve explained before this is something a person has to think about before they go into that field. > > This would be an entirely different argument if a high court had ruled the law unconstitutional. It hasn’t. This pompous AG has decided to be judge, jury, and executioner in defiance of the will of the people. But it’s not a matter of “laws he wouldn’t like”. It’s a matter of his being instructed to find a manner of proving the constitutionality of a law, examining the issue, and concluding that there isn’t one. If I were, say, a teacher, and I was instructed by my superiors to teach children how to prove that 2+2 = 643, and I responded that I couldn’t do that because it wasn’t possible, would I be guilty of dereliction? ---
**Author:** ![Gyrate](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gyrate/32/3588_2.png) [@Gyrate](https://boards.straightdope.com/u/Gyrate)\ **Post date:** [January 24, 2014, 11:54am UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/74 "2014-01-24T11:54:11Z")
Upon hearing this, I had just assumed that Herring had seen the fun and games going on in Utah and Oklahoma, had a look at the wording of Virginia’s anti-SSM laws in comparison and the arguments made in the other two states and decided they were similar enough that a constitutional challenge in Virginia was likely. But rather than expend his office’s resources on an extended legal fight, request for stays etc, he opted to “coast” on a non-defense position until such time as the Utah and Oklahoma cases get resolved, at which point either the VA law can go away or he can switch back on the enforcement. Am I reading this wrong? I recognize that the exercise of his discretionary powers is going to be heavily informed by his personal views but I’d be surprised if the progression of the other cases had no bearing on his decision. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [January 24, 2014, 11:59am UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/75 "2014-01-24T11:59:08Z")
> [@pkbites](#): > > The violation of ethics came when he sought a job where he knew there would be laws he wouldn’t like and wouldn’t like to defend or prosecute, and then accepted that role and refused to do his job. I’ve explained before this is something a person has to think about before they go into that field. Well, if the people of Virginia feel the same way, let them impeach or recall him or whatever the relevant mechanism is to remove him from office, assuming one exists, or elect somebody else next time. Meantime, he’s decided not to pretend that there’s no such thing as a gay Virginian. ---
**Author:** ![Zakalwe](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zakalwe/32/270_2.png) [@Zakalwe](https://boards.straightdope.com/u/Zakalwe)\ **Post date:** [January 24, 2014, 1:56pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/76 "2014-01-24T13:56:36Z")
> [@pkbites](#): > > The violation of ethics came when he sought a job where he knew there would be laws he wouldn’t like and wouldn’t like to defend or prosecute, and then accepted that role and refused to do his job. I’ve explained before this is something a person has to think about before they go into that field. Just a practical matter, you understand that by this stance there have been _very_ few"ethical" AGs elected anywhere in the country, right? This is a pretty common decision for an AG although rarely this high-profile. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 24, 2014, 2:00pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/77 "2014-01-24T14:00:03Z")
> [@Zakalwe](#): > > Just a practical matter, you understand that by this stance there have been _very_ few"ethical" AGs elected anywhere in the country, right? This is a pretty common decision for an AG although rarely this high-profile. What other examples are you thinking of? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 24, 2014, 2:01pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/78 "2014-01-24T14:01:29Z")
> [@Gyrate](#): > > Upon hearing this, I had just assumed that Herring had seen the fun and games going on in Utah and Oklahoma, had a look at the wording of Virginia’s anti-SSM laws in comparison and the arguments made in the other two states and decided they were similar enough that a constitutional challenge in Virginia was likely. But rather than expend his office’s resources on an extended legal fight, request for stays etc, he opted to “coast” on a non-defense position until such time as the Utah and Oklahoma cases get resolved, at which point either the VA law can go away or he can switch back on the enforcement. > > Am I reading this wrong? I recognize that the exercise of his discretionary powers is going to be heavily informed by his personal views but I’d be surprised if the progression of the other cases had no bearing on his decision. This is unlikely, since Utah and Oklahoma are in different federal circuits than Virginia is. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [January 24, 2014, 2:01pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/79 "2014-01-24T14:01:43Z")
You’re right, a cop doesn’t get to decide constitutionality issues. But an AG has that as part of his job. Does anyone really think \*any \*state anti-SSM laws are consistent with the SC DOMA ruling? That a decision not to bother defending them is \*not \*a prudent decision not to waste taxpayer money and time? ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [January 24, 2014, 2:08pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/80 "2014-01-24T14:08:58Z")
> [@Bryan\_Ekers](#): > > Maybe it’s like sports - he’s expected to try his best anyway. The individual player is expected to try his best at each moment. The AG’s position is more like that of a coach who must juggle the finite resources of player endurance, resistance to injury, etc in order to determine when to pull back a bit now so that a full push will be possible under circumstances more conducive to success. [Previous page](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535.md?page=3) [Next page](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535.md?page=5)