# 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:** 9
**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, 2:57pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/161 "2014-01-28T14:57:10Z")
> [@Really\_Not\_All\_That\_Bright](#): > > The DOMA ruling rested on due process and equal protection of rights _which stemmed from state action_. It wasn’t a traditional equal protection case. You and the \*\*Captain \*\*leave only a narrow, technical, counterprincipled case for maintaining an SSM ban. To repeat the question, if an SSM ban violates federal EP and DP protections, as is now the case, how can you say a state can do it anyway? Both amendments are incorporated, remember. Depending on the composition of the court to predict a ruling against its own self is also, um, quite a puzzling assertion. ---
**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, 2:57pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/162 "2014-01-28T14:57:40Z")
> [@Bricker](#): > > BWA??? > > This can’t be a serious question. > > The essence of our jurisprudence is vigorous advocacy. This is the heart of the problem. You think the AG is just a lawyer for the state. He is more than that. He takes an oath to uphold the Constitution as part of his duties. He is REQUIRED, therefore, to not enforce laws that violate it. If the state needed a lawyer to represent it without independent constitutional duties, they could just hire one when they need one. > [@](#): > > I assume you can see that if the trial consisted of the prosecutor saying, “Here’s the evidence that proves guilt,” and the defense attorney saying, “Yeah, that sounds about right to me,” we would have much less confidence in the actual guilt of the accused. The result of trials, both civil and criminal, are accorded respect because they are the conclusion of a strong advocate for each position presenting his case. A better, but not perfect, analogy would be a prosecutor being bound to disclose all evidence to the defense, even if it could exonerate the accused. > [@](#): > > No, it doesn’t. If the AG refuses to litigate, who do you imagine can appeal? Who defended the state in the first place? > [@](#): > > I agree. As long as someone – some real party in interest – has standing, the damage is minimal. But who has that standing, in your view? Remember that in the Prop 8 case, while the California courts permitted the backers of Prop 8 to step in, the US Supreme Court ruled that for federal purposes they did NOT have standing. > > So who does? Perhaps nobody. So what? If there is no aggrieved party being harmed, perhaps that should be the end of it. > [@](#): > > The difference here is one I have laid out above. When a judge does it, his decision can be appealed. Ultimately the decision is never made made one or two people. A constitutional officer’s decisions can usually be appealed too, through the courts. > [@](#): > > Here, in contrast, the AG decides to roll over and the Governor agrees. Two people can erase a state constitutional amendment approved by over 1.3 million Virginia voters. There is no appeal possible. That flies in the face of our cherished concept of self-governance. You can’t hang your hat on “appeal,” because that’s purely a process issue. Court cases can be appealed, but only for a while. Ultimately, a court rules, and the ruling is final. The idea that self-governance exists simply because there’s an appeal process is illogical. A law overturned is a law overturned. That said, you might find a hypothetical where an AG and governor have final say, but this isn’t that. This is a court case. It can be appealed. Both sides have lawyers representing them. And, of course, electing an AG and governor are part of self-government too, as was ratifying the U.S. Constitution an agreeing to be bound by it. The people may not violate the U.S. Constitution by passing state constitutional amendments. That is part of self-governance. It is not always a court that has the last word on what that means. Ultimately, the General Assembly can and maybe should pass a law giving it, or some other party, standing in cases like this. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [January 28, 2014, 3:06pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/163 "2014-01-28T15:06:11Z")
Also, to add. If the Supremes had wanted to, they could have said that prop 8 was unconstitutional on federal equal protection rather than punting on standing grounds. The fact they didn’t suggests that the gay marriage ban is unconstitutional side isn’t confident they’ll prevail ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [January 28, 2014, 3:11pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/164 "2014-01-28T15:11:23Z")
There is a work-around that is perhaps dissatisfying to all. SCOTUS rules much as Captain Amazing theorizes above. Each state gets to decide whether to issue marriage licenses for SSM. The federal government must recognize all marriages legally made in any state. And in a later challenge the court rules that a state which prohibits SSM must nevertheless recognizes a SSM legally performed in another state. That would be a Full Faith and Credit clause argument. > [@Article IV](#): > > ``` > Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof > > ``` ---
**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 28, 2014, 3:12pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/165 "2014-01-28T15:12:22Z")
> [@Captain\_Amazing](#): > > Also, to add. If the Supremes had wanted to, they could have said that prop 8 was unconstitutional on federal equal protection rather than punting on standing grounds. The fact they didn’t suggests that the gay marriage ban is unconstitutional side isn’t confident they’ll prevail I don’t see how that follows. My understanding is that the Supremes often define the scope of a case in the narrowest terms possible, the exceptions being if they’re in one of their “activist mode” phases (or if they’re in their more common “corporate whore” mode). They may have felt that the case in front of them wasn’t strong enough for a “punt” - that may come when the Utah case gets to them (assuming it does). ---
**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, 3:13pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/166 "2014-01-28T15:13:31Z")
> [@ElvisL1ves](#): > > Its reliance on the Fourteenth and Fifth Amendments, both of which are incorporated on the states. The DOMA ruling made it pretty clear that anti-SSM laws are violations of equal protection and due process at the federal level, so how can they not be at state level too? No question that the amendments are incorporated, but you need to go further than that. It’s too facile to say that “anti-SSM laws” are violations; it just skips the analysis. The rationale of DOMA goes something like: marriage is a traditional (and important) state matter. The federal government usually defers to state law on questions of marriage. NY has allowed same-sex marriage. DOMA carves out a subset of these state-sanctioned marriages and treats them as inferior for illegitimate reasons (i.e., those who voted for DOMA were entirely motivated by animus). The Court falls all over itself to stress that the issue here is a mistreatment of a class of persons legally married under state law. The federal law injures those who the state seeks to benefit in an area of state concern. Maybe that leads to: “and, by the way, the state is required to sanction these relationships.” But, at least, that is one step further and it would be entirely consistent with Windsor not to take it. > [@](#): > > Gonna haveta 'splain that one. It’s fairly clear (to me) from their Windsor dissents that Alito, Thomas, Scalia, and Roberts are not inclined require that states recognize same-sex marriage. You want the Court to take what (for you) is the next logical step from Windsor, all I’m saying is that there’s always the chance that the one vote you need isn’t going to cross that line. > [@](#): > > Probably would have been a better idea to apply the \*ruling \*than a dissent, no? I think so. Scalia is prone to the parade of horribles in his dissents (O’Connor did it too, sometimes). I don’t think they’re terribly helpful, but the purpose of them is to take what the majority says it did do, list a whole bunch of things that the majority says it didn’t do, and then say that the logic for the one compels the other. They’re not effective at all if the things in the list are things that the majority intends. Which is why citing the list as evidence of the holding (while it has a certain political appeal) is uncompelling. Use a less politically charged example. (I’m doing this from memory, but I think I have this right). Some time ago, the Court held that it was constitutionally permissible for juries to have less than 12 jurors in federal civil cases. Thurgood Marshall dissented saying that by that logic you could have a jury of one. Maybe true, maybe not. But no one would claim that that dissent “proves” that the Court held that a jury of one is okay. > [@](#): > > Kennedy’s wording was crappy, but the majority’s (and therefore the Court’s) intent was clear nonetheless. So how is it not a waste of time to go against it? Well, becuase I disagree that the intent was clear, I suppos ---
**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, 3:22pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/167 "2014-01-28T15:22:08Z")
> [@ElvisL1ves](#): > > You and the \*\*Captain \*\*leave only a narrow, technical, counterprincipled case for maintaining an SSM ban. To repeat the question, if an SSM ban violates federal EP and DP protections, as is now the case, how can you say a state can do it anyway? Both amendments are incorporated, remember. I can’t speak for **CA** , but I have no interest in maintaining an SSM ban. If it were up to me, it would be legal everywhere tomorrow. But it’s not up to me, and the point here is that SCOTUS did not say withholding marriage from same-sex couples was an equal protection or due process violation. It said it was a violation for the federal government to withhold marriage _benefits_ when a state had sanctioned a marriage. Incidentally, it’s not correct to say that the Fourteenth Amendment is “incorporated” against the states. The 14th is the mechanism _by which_ selective incorporation occurs; that is, it is the 14th which incorporates certain portions of the Bill of Rights against the states. It doesn’t have to be “incorporated” itself because it applies to the states by its own terms. ---
**Author:** ![Inner\_Stickler](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/inner_stickler/32/318_2.png) [@Inner\_Stickler](https://boards.straightdope.com/u/Inner_Stickler)\ **Post date:** [January 28, 2014, 3:27pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/168 "2014-01-28T15:27:33Z")
> [@Bricker](#): > > The Commonwealth has made very clear that its will is to define marriage as only between one man and one woman. Then I imagine Herring’s recall will be swift and nigh unanimous. ---
**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, 3:29pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/169 "2014-01-28T15:29:06Z")
> [@Inner\_Stickler](#): > > Then I imagine Herring’s recall will be swift and nigh unanimous. Of course, Virginia doesn’t have recall elections. So there’s that. ---
**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, 3:32pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/170 "2014-01-28T15:32:55Z")
Well, there’s [this procedure](http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+24.2-233) I alluded to earlier. The recall petition would require 10% of the votes cast for AG, which doesn’t seem too difficult. ---
**Author:** ![Inner\_Stickler](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/inner_stickler/32/318_2.png) [@Inner\_Stickler](https://boards.straightdope.com/u/Inner_Stickler)\ **Post date:** [January 28, 2014, 3:38pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/171 "2014-01-28T15:38:11Z")
> [@Falchion](#): > > Of course, Virginia doesn’t have recall elections. So there’s that. You’re better than that, I assume. If the state of Virginia thinks he’s not doing his job, the process for removing him is simple enough. ---
**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, 3:38pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/172 "2014-01-28T15:38:36Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Well, there’s [this procedure](http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+24.2-233) I alluded to earlier. The recall petition would require 10% of the votes cast for AG, which doesn’t seem too difficult. The problem is that it then requires convincing a judge that his neglect of duty affected “the conduct of the office.” Which is fine, this is a good case for it, but it’s almost unheard of. Certainly, the argument that if the citizenry really wanted the laws defended they would have elected someone who would, so we can assume that they don’t really want it, would have no purchase there. Edit: But I would think that “past practice” would be sufficient to prevent a judge from taking that step. Whatever the merits. Heck, they couldn’t even use the removal procedure to get rid of a county supervisor for raping a bunch of women. > [@Inner\_Stickler](#): > > You’re better than that, I assume. > > If the state of Virginia thinks he’s not doing his job, the process for removing him is simple enough. Maybe I’m not better. What’s the procedure? ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [January 28, 2014, 3:43pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/173 "2014-01-28T15:43:31Z")
> [@Really\_Not\_All\_That\_Bright](#): > > I can’t speak for **CA** , but I have no interest in maintaining an SSM ban. If it were up to me, it would be legal everywhere tomorrow. I’ve long believed that the Court should use intermediate scrutiny for sexual orientation, and that a gay marriage ban violates that. I think the court is coming around to that pov, but isn’t there yet. ---
**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, 3:44pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/174 "2014-01-28T15:44:25Z")
> [@Falchion](#): > > Heck, they couldn’t even use the removal procedure to get rid of a county supervisor for raping a bunch of women. Maybe the removal procedure needs fixing, then. I think the underlying point is merely that this blatant thwarting of the the Will of the People (per **Bricker** ) should at least be sufficient to get the electorate to sign the recall petition. And if it isn’t, maybe the people don’t actually give a shit. ---
**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, 3:46pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/175 "2014-01-28T15:46:04Z")
> [@Falchion](#): > > It’s too facile to say that “anti-SSM laws” are violations; it just skips the analysis. … > The Court falls all over itself to stress that the issue here is a mistreatment of a class of persons legally married under state law. The federal law injures those who the state seeks to benefit in an area of state concern. > > Maybe that leads to: “and, by the way, the state is required to sanction these relationships.” But, at least, that is one step further and it would be entirely consistent with Windsor not to take it. 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’s fairly clear (to me) from their Windsor dissents that Alito, Thomas, Scalia, and Roberts are not inclined require that states recognize same-sex marriage. They lost, remember? > [@](#): > > You want the Court to take what (for you) is the next logical step from Windsor, all I’m saying is that there’s always the chance that the one vote you need isn’t going to cross that line. 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. There’s no point in mentioning that the dissenters would probably still dissent; it’s a truism that Scalia & Co. oppose pretty much everything that’s happened since the Buchanan Administration. ---
**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, 3:52pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/176 "2014-01-28T15:52:43Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Maybe the removal procedure needs fixing, then. I think the underlying point is merely that this blatant thwarting of the the Will of the People (per **Bricker** ) should at least be sufficient to get the electorate to sign the recall petition. And if it isn’t, maybe the people don’t actually give a shit. So do you want to recall judges for overturning laws as unconstitutional too? What’s the difference? ---
**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, 3:54pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/177 "2014-01-28T15:54:07Z")
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. ---
**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, 3:56pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/178 "2014-01-28T15:56:21Z")
> [@Inner\_Stickler](#): > > Then I imagine Herring’s recall will be swift and nigh unanimous. 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. ---
**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, 3:59pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/179 "2014-01-28T15:59:46Z")
… other than the petition procedure under discussion. ---
**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, 4:00pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/180 "2014-01-28T16:00:52Z")
> [@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. Unfortunately, that would be true. But many people don’t understand that the AG is doing his job. [Previous page](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535.md?page=8) [Next page](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535.md?page=10)