# 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:** 7
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 25, 2014, 6:43pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/121 "2014-01-25T18:43:58Z")
> [@Telemark](#): > > That may be your belief, but I think it’s pretty difficult to support that position. The three branches of government are checks and balances on each other. Resigning the presidency in this situation is IMO going against the spirit of the constitution. I agree. Sorry – although the hypothetical clearly says, “The President,” the general subject of discussion was AGs and I apparently did some kind of mental edit. The President is a unique constitutional actor. I agree he has an independent duty to interpret the constitution. The AG, not so much. ---
**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 25, 2014, 7:31pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/122 "2014-01-25T19:31:40Z")
> [@Bricker](#): > > The President is a unique constitutional actor. I agree he has an independent duty to interpret the constitution. > > The AG, not so much. Why not? The context here was the checks and balances of the three branches of government, and it seems to me that just as the federal AG recently announced that the government would not be enforcing federal marijuana laws in states that had legalized it, and presumably did so at the behest of the President, so too the Virginia state AG has echoed the position of the state’s executive branch on the gay marriage ban. > [@jtgain](#): > > An AG could refuse to defend a law if he could not ethically make an argument in support of it. I think some of us are trying to make the case that this is exactly what Mark Herring is doing. ---
**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 25, 2014, 7:40pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/123 "2014-01-25T19:40:12Z")
> [@wolfpup](#): > > Why not? The context here was the checks and balances of the three branches of government, and it seems to me that just as the federal AG recently announced that the government would not be enforcing federal marijuana laws in states that had legalized it, and presumably did so at the behest of the President, so too the Virginia state AG has echoed the position of the state’s executive branch on the gay marriage ban. One big difference of course is that while the U.S. attorney general’s authority is entirely derived from the president, the Virginia attorney general—like many other state attorneys general—has authority independently derived from his elective office. ---
**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 25, 2014, 10:17pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/124 "2014-01-25T22:17:51Z")
> [@Acsenray](#): > > One big difference of course is that while the U.S. attorney general’s authority is entirely derived from the president, the Virginia attorney general—like many other state attorneys general—has authority independently derived from his elective office. That’s true, and it may be – or may not be – a relevant differentiation. It would be interesting if the duly elected governor was opposed to the position of the duly elected AG, but is that the case here? Or do we simply have a case of the executive branch exercising the same executive authority as has been exercised by many executive branches of federal and state governments and many elected state AGs in the past? This sort of constitutional law is the farthest thing from my expertise, but all I’m saying is that I just don’t see the case against the AG’s judgment. ---
**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 25, 2014, 10:38pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/125 "2014-01-25T22:38:24Z")
> [@jtgain](#): > > I don’t know why we would need “substitutes.” The AG is paid by the taxpayers to defend the state against lawsuits. His own personal opinion shouldn’t allow him to step aside from that duty. (And this should apply to the NJ gun laws and other GOP favorites as well) Why on earth would you want a guy who doesn’t believe in his own case to argue it before a court? Seems to me that forcing a guy who disagrees with his own case to argue it before the court would be far worse a plan than letting someone who does believe in the case to argue it. Why, other than the feeling of power over having an AG do what he doesn’t want to do, purpose does it serve? > [@jtgain](#): > > As far as the Alien and Sedition Acts, those were passed before the concept of Judicial Review was even established in 1803. But assuming we had the system in place then as we do now, should the Jefferson Administration have defended the Alien and Sedition Acts in court? It does present a good question, but I would have to say yes. Society is best represented with a full and fair hearing on the merits of each question. Look at the Prop 8 decision; the refusal to defend the California law simply allowed the issue to be punted. It will be heard at some point in time, and it’s best for everyone to do their jobs and represent their clients. And, again, why force a person to violate not only their own determinations of constitutionality and their own moral senses, when there are other options available? It seems to me having someone who clearly doesn’t believe in their own case is not going to serve the purpose of creating a “full and fair hearing on the merits of each question.” If no one else is willing to do so, I suppose I could support it, but it seems completely self defeating to force someone to argue a case they don’t agree with when there are better options elsewhere. ---
**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 25, 2014, 10:43pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/126 "2014-01-25T22:43:46Z")
> [@Bricker](#): > > I agree. Sorry – although the hypothetical clearly says, “The President,” the general subject of discussion was AGs and I apparently did some kind of mental edit. > > The President is a unique constitutional actor. I agree he has an independent duty to interpret the constitution. > > The AG, not so much. I still would like some clarification about your assertion there is no “direct conflict” short of an appellate ruling on the very issue, that you had made earlier. And a further discussion of this AG/Presidential distinction and how it changes your view, because I am confused by that as well. And if you could iterate a standard upon which these determinations can be made (even if it is "The AG must always defend the law in court no matter what). ---
**Author:** ![Steely\_Dan\_Fan](https://avatars.discourse-cdn.com/v4/letter/s/9de053/32.png) [@Steely\_Dan\_Fan](https://boards.straightdope.com/u/Steely_Dan_Fan)\ **Post date:** [January 26, 2014, 6:50am UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/127 "2014-01-26T06:50:53Z")
> [@Miller](#): > > Not even remotely close to what I was saying. > > It’s absolutely necessary to a fair and functioning justice system that the accused have advocates to fight on their behalf, even when they’re really, obviously, with-out-a-doubt guilty. This means that defense attorneys are often in a position where they’re responsible for defending very evil people, and sometimes succeeding. **Steely Dan Fan** seems to believe that an attorney in that position would be obligated to sabotage his clients defense, because it’s more important to do the “right” thing than to be a functionary of the system. That’s, like, so divorced from anything I’ve ever said that the custody battle was mooted because the kids grew up. ---
**Author:** ![Steely\_Dan\_Fan](https://avatars.discourse-cdn.com/v4/letter/s/9de053/32.png) [@Steely\_Dan\_Fan](https://boards.straightdope.com/u/Steely_Dan_Fan)\ **Post date:** [January 26, 2014, 6:51am UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/128 "2014-01-26T06:51:56Z")
> [@Guinastasia](#): > > Yep, poor, poor Charles Manson. He just needs to be loved and educated. Indeed. ---
**Author:** ![Steely\_Dan\_Fan](https://avatars.discourse-cdn.com/v4/letter/s/9de053/32.png) [@Steely\_Dan\_Fan](https://boards.straightdope.com/u/Steely_Dan_Fan)\ **Post date:** [January 26, 2014, 6:53am UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/129 "2014-01-26T06:53:14Z")
> [@lance\_strongarm](#): > > I totally disagree. Then you’re wrong. > [@](#): > > To do what you personally believe, violating your duty of office, is itself morally wrong. You weren’t put there by the people to do that. You should resign if you can’t square your morality with the office. Fuck that authoritarian bullshit. That’s how shit never changes or gets any better. ---
**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 26, 2014, 5:50pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/130 "2014-01-26T17:50:06Z")
> [@ElvisL1ves](#): > > Does anyone really think \*any \*state anti-SSM laws are consistent with the SC DOMA ruling? I do. In fact I think it’s 50 out of 50 considering SCOTUS ruled the definition of marriage is a state issue not a federal one an that is why DOMA is unconstitutional. ---
**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 26, 2014, 6:01pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/131 "2014-01-26T18:01:52Z")
> [@jtgain](#): > > The AG is paid by the taxpayers to defend the state against lawsuits. His own personal opinion shouldn’t allow him to step aside from that duty. No, he is paid to uphold the law, including first and foremost the U.S. Constitution. If he were just a lawyer, he could be hired, not elected. > [@](#): > > I would draw the line only at patently frivolous arguments that would cause a lawyer to violate professional ethics (for example if Virginia passed a law requiring death and torture for those who refused to attend the Baptist church on Sunday). An AG could refuse to defend a law if he could not ethically make an argument in support of it. Huh? Why do you get to draw that line? If the AG must follow the Constitution, he must do so in all cases, not just extreme cases like that. ---
**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 26, 2014, 6:04pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/132 "2014-01-26T18:04:46Z")
> [@Steely\_Dan\_Fan](#): > > Fuck that authoritarian bullshit. That’s how shit never changes or gets any better. Just the opposite. YOU are the authoritarian, not me. Things get better when you don’t throw out your institutions in favor of people doing whatever they want. When you give leaders the power to do anything, THAT is when you get authoritarianism. ---
**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 26, 2014, 6:07pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/133 "2014-01-26T18:07:37Z")
> [@Bricker](#): > > The President is a unique constitutional actor. I agree he has an independent duty to interpret the constitution. > > The AG, not so much. Why not? The AG takes an oath to uphold the U.S. Constitution too. In fact, it’s not possible to do the job of government leader, any job, without interpreting the Constitution and the laws. ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [January 26, 2014, 6:55pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/134 "2014-01-26T18:55:43Z")
> [@Steely\_Dan\_Fan](#): > > That’s, like, so divorced from anything I’ve ever said that the custody battle was mooted because the kids grew up. How about answering my question in post 105? ---
**Author:** ![EverwonderWhy](https://avatars.discourse-cdn.com/v4/letter/e/ee59a6/32.png) [@EverwonderWhy](https://boards.straightdope.com/u/EverwonderWhy)\ **Post date:** [January 26, 2014, 7:32pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/135 "2014-01-26T19:32:00Z")
> [@Saint\_Cad](#): > > I do. In fact I think it’s 50 out of 50 considering SCOTUS ruled the definition of marriage is a state issue not a federal one an that is why DOMA is unconstitutional. While the majority opinion in _Windsor_ gave a nod to state rights, DOMA was found unconstitutional on the 5th and 14th Amendments, not the Tenth. ---
**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 26, 2014, 7:46pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/136 "2014-01-26T19:46:45Z")
> [@Acsenray](#): > > One big difference of course is that while the U.S. attorney general’s authority is entirely derived from the president, the Virginia attorney general—like many other state attorneys general—has authority independently derived from his elective office. I want to add another point to my earlier one – remembering that the context here is that we agree that the President does have discretionary authority, as the head of the executive branch, on the implementation and enforcement of laws. The situation where an AG is independently elected to the specific office is different than the federal Executive (and it’s also different from the Westminster parliamentary system where cabinet members, though elected MPs, are appointed to cabinet by – and accountable to – the Prime Minister). It seems to me that this independent election, for good or for bad, implies a sharing of executive power, and thus a sharing of the relevant discretionary power, not the absence of it. Which, if one accepts that logic, would give the elected state AG the same sort of discretion over the enforcement of state law that the President has over federal law and many other matters. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 27, 2014, 6:18pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/137 "2014-01-27T18:18:32Z")
> [@wolfpup](#): > > That’s true, and it may be – or may not be – a relevant differentiation. It would be interesting if the duly elected governor was opposed to the position of the duly elected AG, but is that the case here? Or do we simply have a case of the executive branch exercising the same executive authority as has been exercised by many executive branches of federal and state governments and many elected state AGs in the past? This sort of constitutional law is the farthest thing from my expertise, but all I’m saying is that I just don’t see the case against the AG’s judgment. Here’s the case: if one official can, by his inaction (or outright opposition) undo the existence of an article of the state constitution, one which was directly approved by a majority of state voters, then the notion of self-governance is eviscerated. ---
**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 27, 2014, 6:26pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/138 "2014-01-27T18:26:32Z")
It’s a good thing Mr. Herring can’t do that, then, eh? ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [January 27, 2014, 6:30pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/139 "2014-01-27T18:30:49Z")
> [@Really\_Not\_All\_That\_Bright](#): > > It’s a good thing Mr. Herring can’t do that, then, eh? Assume slightly different facts that the Norfolk case. It’s only the out of state married couple, the lawsuit is against the registrar (I’m changing the facts just to remove the city’s insurance company - which isn’t really an insurance company, but that’s a different conversation) demanding recognition of an out of state marriage. The AG (whose office is statutorily obligated to provide the defense of the state official) orders his office not to appear (or to argue against his client). Default judgment for the plaintiff. How has he not “undone” the Virginia Constitution? ---
**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 27, 2014, 6:33pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/140 "2014-01-27T18:33:14Z")
Because that scenario requires the governor to refuse to appoint outside counsel. In any event, a default would not bind any future reviewing court. [Previous page](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535.md?page=6) [Next page](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535.md?page=8)