That makes about as much sense as saying that if a judge overturns a law made by a duly-elected legislature, it’s not self-governance. Yet you wouldn’t bat an eye if that happened.
This country, and each state, is self-governed only within the bounds of the U.S. Constitution. Nobody can make a law that violates it, even if a large majority of the people want it.
Does the Governor have the authority to appoint outside counsel? I believe only the AG have that authority (in Virginia). What if instead the AG’s office enters an appears and just concedes all points?
Sure, the default’s not binding. So, for four years, the democractic enactment is invalidated by the AG. And then, assuming someone new takes over, what happens? A federal lawsuit arguing that the relevant law in Virginia shouldn’t arbitrarily depend on the political positions of the incumbent AG?
Sure – but we have a process, one that doesn’t begin and end with one or two people, for deciding what does, or does not violate the Constitution.
If a judge overturns a law, his decision can be appealed. At a minimum, that appeal is decided by a three-judge panel, and an aggrieved party can ask the full circuit to step in after that. Even then, I argue that judges should be using the plain meaning of the Constitution, as opposed to crafting expansive penumbras and emanations onto the document.
Here, in contrast, we have at most two people frustrating the express will of the Virginia electorate. That is absolutely the antithesis of self-government.
If you get a second, Bricker.
This is my position.
Those who applaud this AG don’t really care about the manner a law is neutered, what they care about is the neutering of a law they don’t like, legal process be damned.
If instead the people of Virginia had passed a constitutional amendment that said Virginia would recognize all marriages and this AG refused to defend it when it was challenged, the left would be screaming about how he wasn’t doing the job he was elected to do.
Probably not because it wouldn’t matter. A gay couple who was denied the right to marriage would have standing and would much prefer to fight it on their own instead of a half hearted attempt from someone who does not believe in the cause. Yet another strawman fail by you in this thread.
Out of curiosity, do you personally think that same sex marriage should be legal?
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.
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.
pkbites, as a law enforcement officer how did you feel about enforcing seat belt laws?
Isn’t the problem that we don’t know if a same sex marriage ban violates the US Constitution yet, because there’s no settled law on it? I mean, that’s the whole matter at issue. Some people think that a ban on same sex marriage should be Constitutional, some people think it shouldn’t, so the two sides go to court and litigate it out until the courts make a decision. But you can’t start the argument by assuming it’s already settled.
You don’t think the DOMA ruling was enough to settle that point? How, in your view, would continuing a SSM ban be consistent with it? And, if you find that your state’s SSM ban would almost certainly not survive a SCOTUS decision on it, then why is it a good idea even to bother trying to defend it?
ISTM that the statute Cooch relied on not only allows the governor to appoint outside counsel, it requires him to do so. As to that latter question, that would seem to be a hole in the VA constitution that Le People might do well to fix.
What is it about the rationale in Windsor that makes you think that a SSM ban is unconstitutional? Leave aside the “five vote” problem (i.e., as a practical matter, you need to show how Kennedy believes that it settled it, since you quite clearly have four votes for allowing the state to define marriage to be only opposite-sex couples).
I mean, it seems to me that there is a reason that the Oklahoma judge relies on the odor of a doctrinal shift (towards heightened scrutiny) and the Utah judge applied Scalia’s “parade of horribles” dissent. If the majority opinion plainly foreclosed a same-sex marriage ban, wouldn’t the judges simply cite that section of it?
The AG is part of that process - and he takes an oath to uphold the Constitution. He is not obligated to wait for a court to decide for him.
And it won’t just be two people here either. This is a court case like any other.
Suppose the AG defended the law, and the court struck it down? How would that be any different in the end?
Sure, and that applies no matter what the AG does.
The only issue here is who, if anyone, can represent the state in court to defend this law if the AG doesn’t. As long as someone has standing to do so, there’s no problem. It’s a weird situation, yes, and I find it a little strange for the AG to go beyond refusing to defend the law to telling the court it should overturn it, but its a legitimate position for the AG to take.
That’s a different discussion.
Again, that’s absolute hogwash. Judges have been overturning laws for centuries, and you probably never complained. What’s the difference here?
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.
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.
No, the AG is more than just the state’s lawyer. If that’s all he was, the state would just hire a lawyer when it needed one, not elect someone.
The AG swears to uphold the U.S. Constitution in his oath of office. Just like a judge does. This oath is where judges claim their power to rule that a law doesn’t comply with the U.S. Constitution and must therefore not be enforced. The AG is obligated to do the same. Just as he issues opinions on what is legal or constitutional to guide state officials, he must act in accordance with the U.S. Constitution, above all else, in any of his duties.
Other lawyers have the ability to withdraw rather than make a colorable but bad faith defense. He doesn’t. Obviously, he took the job, but his duty can’t be dependent on the fact that this issue arose prior to the election.
On balance, I think I am probably opposed to Herring’s decision (though that depends on the availability of outside counsel.) I just don’t think it has provoked some kind of constitutional crisis.
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?
Gonna haveta 'splain that one.
Odor? That’s all you detect?
Probably would have been a better idea to apply the *ruling *than a dissent, no?
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?
BWA???
This can’t be a serious question.
The essence of our jurisprudence is vigorous advocacy. I assume you comprehend why we are comfortable sending a man to prison following a criminal trial – it’s because the result of the criminal trial was reached after the Commonwealth accused him and had a vigorous advocate for that position, and the man was defended by an attorney who was an equally vigorous advocate for his defense.
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.
So to answer your question: it would be different because if the AG defended the law, the judge’s decision would be based on facts and law found through a trial; if the AG refuses to defend the law, there is no such weighing of law and facts.
[quote=Bricker]
If a judge overturns a law, his decision can be appealed. At a minimum, that appeal is decided by a three-judge panel, and an aggrieved party can ask the full circuit to step in after that.
No, it doesn’t. If the AG refuses to litigate, who do you imagine can appeal?
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?
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.
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.
Pretty easily given the composition of the court. And, if you look at the DOMA ruling, it said, basically, it’s up to the state to say who’s married, and it’s unconstitutional for the feds to say a married couple isn’t married because they are gay." The group not treated equally, according to the decision, isn’t gays, but people in same sex marriages.
They could say, “In Windsor, we ruled that it’s up to the states to decide who’s married. Therefore we won’t tell Virginia who they have to let marry.” They don’t have to rule that way, but it’s not a crazy outcome.
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.
[QUOTE=Justice Kennedy]
DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government.
[/QUOTE]