In direct conflict, I’d say the duty to the constitution probably wins.
But this case doesn’t present direct conflict. There’s nothing in the Fourth Circuit that directly establishes federal law on the subject.
So this is more of a, “What happens when a duty to uphold duly passed laws conflicts with a personal view of the Constitution, which duty comes first?”
Answer: the duty to uphold duly-passed laws.
So I have no insight on why Herring made this decision (although I was informed earlier in the thread that it was a staple of his electoral position, which was long before the Utah and Oklahoma cases).
But, one thing I want to point out (and have been pointing out over and over) is that I think you’re being misled by the peculiar ignorance of some of the posters in this thread. There’s no “likely constitutional challenge.” There is an ongoing case in Norfolk. I keep saying this, but people keep talking about “hypothetical lawsuits” so I’m beginning to feel ignored. But, let me take a stab at explaining what’s going on (and I think this is a fair, non-partisan, summary):
In July, as part of the wave of post-Windsor lawsuits, there was a complaint filed in Norfolk by a same-sex couple who wanted a marriage license. The complaint was filed against the Norfolk Clerk of Court. In September, the complaint was amended to add a same-sex couple that had been married out of state and whose marriage was not recognized in Virginia. The suit then added the state Registrar of Vital Records as a defendant.
In August, the Attorney General’s office asked to intervene (as the Commonwealth) because the case presented a challenge to state law. Which was granted.* Once the Registrar was added, it was a moot point because, as I understand it, the AG’s office is required to defend a state-level official (the Clerk is defended by a lawyer hired by, essentially, the insurance company). So, from early August 2013 until this week, the defense was run by the Solicitor General.
Two days ago, Herring announced that he had decided that the law (he voted for) was unconstitutional. As a result, he was not going to defend it any more. Moreover (and this is what rankles me the most), he was going to actively argue against the law. So, yesterday, the new Solicitor General filed a brief arguing against the previous position of the Solicitor General in the case and arguing that the party they represent (the Registrar) should lose.
So, this simply isn’t a question of “hypothetical” cases or likely future challenges.
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[QUOTE=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.
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What other examples are you thinking of?
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Not an AG, but the supreme example would be Jefferson’s refusal to defend (or even enforce) the Sedition Acts.
Closer to home, you may recall Ken Cuccinelli’s refusal to defend a law against a (state) constitutional challenge… four months ago. It seems not to have provoked quite the same level of conservative outrage.
No, it’s extraordinarily rare.
Where does that authority come from? Show me the provision that gives him, essentially, veto power over state laws and I will gladly change my stance.
The Cooch seems to have interpreted Code § 2.2-510 as allowing him to do so. That’s not quite how I read it.
Another recent example is Republican Jon Bruning, who refused to defend Nebraska’s “patient screening” abortion requirement citing lack of resources.
That’s not how I read it either.
(I draw a visceral distinction that I know you appreciate, but others may not, between declining to enter an appearance and arranging for special counsel and arguing against your client mid-case; but that’s not really the point).
I agree with you with regard to the timing as a general matter. I’m just not sure that it matters in this case, since there was apparently no joint defense agreement and there won’t be any issues of fact (I assume.) If the AG’s office and the private counsel defending the registrar (clerk?) discussed tactics and the like I imagine that attorney will be filing a motion for disqualification or something anyway.
A previous poster gave a good example here. Other examples abound. The US Attorney General announced last August that he would defer both the right to challenge the states that have legalized marijuana as well as the federal prerogative to prosecute. In December, New Jersey’s AG declined to defend two of the state’s gun laws.
But I think the comment should be given a broader interpretation, namely that it’s common for AGs to be activist in a variety of ways regarding laws and issues that they happen to have views on. There is no better example than Virginia’s previous AG, Ken Cuccinelli, one of the most idiotic troglodytes to have ever held public office. Unhappy with the passage of Obama’s Affordable Care Act, he wasted millions of taxpayer dollars first trying to appeal to the Supreme Court which refused to hear the case, then taking it through a series of litigations in District Court until it was finally thrown out by the Fourth Circuit court of appeals.
Cuccinelli wasted more taxpayer dollars trying to overturn both the EPA ruling on greenhouse gases and the federal Clean Air Act, and lost both of those cases, too. Perhaps most egregiously, as part of his vendetta against climate science he used his authority to attack and persecute climate scientist Michael Mann who was then at the University of Virginia, in a series of baseless charges that garnered national attention and raised accusations against Cuccinelli of McCarthyism. He continued his vendetta against Mann despite losing an initial court case, eventually losing his appeal to the Virginia Supreme Court. Against this background, I think the current AG failing to defend a bad law that ultimately is indefensible can be seen in a somewhat more realistic perspective.
I don’t know if there was a formal JDA, but they were co-defendants and, I’ll bet you anything, the AG’s office was running the show. Now, in anticipation of Herring’s defection, the clerk of somewhere else (Prince William County?) who is represented by the ADF sought to intervene, so the defendants will be represented by lawyers with some heft (rather than just piling on the poor guy appointed by the insurance company) and who were not involved in the tactics.
Reading the old SG’s brief and the new SG’s brief, there’s nothing terribly revolutionary in them (except that I think rational basis review is dead); this is all law, and they’re making the arguments that you make. So you’re probably right about it not mattering. But, I’ll tell you, if I got up Monday and filed a brief that said that, having thought about it, my client’s position was wrong and should lose, they’d disbar me.
As a Virginian and supporter of marriage equality and gay rights in general, this news still very much disappoints me. When the ban was on the ballot, I voted against it and I urged friends and family to do the same, though, as I expected, to little effect. Nonetheless, it became law, and I remain hopeful that, in time, we’ll realize the error of our ways and correct it. However, I also feel that this sort of response is unethical and ultimately harmful to the ends of correcting it.
I believe it is unethical because I believe that the Attorney General has an obligation to uphold the laws and interests of the state without prejudice or passion. Yes, the Attorney General has some discretion in his interpretation, but despite that he and I may both not be fans of the law, I think the interpretation is pretty cut and dry. As such, I think he is ethically obligated to defend the law from the perspective of the state to the best of his ability. We may agree with his stance in this case, but what happens if he makes a similar stance we strongly disagree with?
I also think this ultimately hurts the cause for marriage equality and gay rights in general. If those opposed to the laws challenge it in court and the state offers little or no defense, it’s not convincing. Yeah, it may very well get the law overturned, but as we’ve learned from civil rights laws over the years, getting an individual law overturned is a small battle, the war is about swaying public opinion. If this law really is a violation of the constitution, I want to see that argument completely fought out, every possible rebuttal refuted, and thoroughly bashed in the ground. As it stands, if he doesn’t go out there and defend the law to the best of his ability, it’s not all that much different from judicial activism, except I guess attorney general inactivism. And that’s exactly how the event will be played out in the minds of those who oppose marriage equality, this law may get struck down, but the people unconvinced, we’ll just end up with another slightly different law and the fight continues. Sure, they’ll still have the argument that, since he doesn’t agree maybe he didn’t try hard enough, but the rebuttal for that is as simple as getting them to articulate whatever argument they think he missed.
So, yeah, as a Virginian, as a supporter of gay rights, I’m very displeased with this choice on his part.
Sure. But Herring isn’t just an attorney. He’s also the client, in the sense that he makes the decision on whether to litigate and so on for the commonwealth. In that regard, this is more analogous to you filing something in, say, a disbarment proceeding where you represented yourself (or any pro se litigation, now that I think about it.)
Alternatively, it’d be like a new board taking control of a corporation and directing its counsel to dismiss a pending action.
Neither example involves an AG actively attacking the law.
What a great post. +1
pkbites was referring to the decision not to defend, not to the decision to affirmatively oppose the law.
That’s what I thought when Gavin Newsom, as the mayor of San Francisco, started issuing marriage licenses to same sex couples. I was wrong. Very wrong. His actions caused same sex marriage to be legal in California to happen years earlier and got the ball rolling for the rest of the country. Waiting for bigots to change their views isn’t the right approach. Having them see the marriages are happening and it’s not big deal is.
The people who are against SSM are part of a long legacy that includes slavery, separate but equal, laws against interracial marriage and laws against consensual homosexual sex. I imagine that the AG doesn’t want to be a part of that legacy. It took the courts and a lot of courageous people to put an end to those things before the “will of the people” changed their views.
P.S. I read your posts, Falchion, and I was also wrong about a “hypothetical”.
See, pkbites, I just admitted that I was wrong twice. It’s not that difficult. By the way, are you personally against SSM?
While I am fully in favor of legalization of same-sex marriage, it’s not productive to compare its denial to these things. You are talking about acts which were criminalized, rather than merely not recognized by the state. It’s one thing for the government to throw you in jail for liking other men (or a black man, or whatever) and quite another for it to refuse to recognize your right to do so.
I see police officers regularly not pulling people over who are going over the posted speed limit. It’s not uncommon to see everyone driving over the posted speed limit in view of an officer with no one receiving a citation. So, clearly police officers are able to use their discretion on whether to enforce the speed limit.
I don’t believe you’re required to search people. If you don’t want to arrest people for concealed weapons, then don’t find them. That seems sort of foolish to me, but it’s not my hide.
What does your opinion of abortion have to do with enforcing property rights and arresting people for violating trespassing laws? There’s no reasonable interpretation of the Constitution that allows for vigilante justice or not enforcing a law because you don’t like the victim.
He may well get fired, too, by being impeached/recalled/not reelected. Doesn’t mean that he should disregard his conscience or the oath he took.
Nope.
One’s fundamental moral obligations as a human being are more important than whatever “duties” may attach to one’s position as a functionary in the system.
If you’re in a position where you can help do the right thing, you do the right thing, regardless of what the system demands of you.
By that logic, how are defense attorneys meant to function?