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| Attorney General Mark Herring (D-VA) |
Mark Herring is not what one would picture as a “hero” of the gay
rights movement. A former Town
Attorney of Lovettsville, Virginia (population: 1737), he looks like the sort
of man who would be in the front pew at his church every Sunday and would, at
best, be a Blue Dog Democrat in the Southern tradition of such gentlemen.
However Herring, who won election to the Attorney General’s office by
less than a thousand votes this past November, made huge waves in the GLBT community
when one of his first acts as Virginia’s head lawyer was to not defend the
Virginia Marriage Amendment (passed in 2006), stating “I believe the freedom to
marry is a fundamental right and I intend to ensure that Virginia is on the
right side of history and the right side of the law.” Previously, Democratic Attorneys General Lisa Madigan (IL),
Kamala Harris (CA), and Kathleen Kane (PA) have also followed a similar course
of action.
While I applaud Mr. Herring’s personal views on this issue, I feel that
this may be a dangerous precedent that he and some of the other Democratic
Attorneys General are setting. The
job of the Attorney General is to provide legal advice to the governor and
government, defend the state in criminal and civil cases, collect money owed to
state institutions, and defend the
constitutionality of state laws. The
Supreme Court has not made a definitive statement on the constitutionality of
same-sex marriage bans, and neither have any of the courts in Virginia (Mr.
Herring isn’t doing this based on a recent court case, similar to what’s going
on in Utah and Oklahoma). There
are no federal laws that he can rely upon to back-up his claim.
Instead, the only law on the books in Virginia is the Virginia Marriage
Amendment of 2006, which doesn’t allow for gay marriage. This is a travesty and were Herring the
governor or still in the State Senate, and introducing legislation to ban gay
marriage in the state or to try and get the ban on a state ballot, I’d be
applauding him. But he’s the
Attorney General, and like the Secretary of State, his job is not supposed to
be wholly partisan. It’s fine (and
admirable) of him to propose that he doesn’t want to support the law and wishes
that the law were different (a course taken by Democratic Attorney General Roy
Cooper of North Carolina), but it doesn’t feel appropriate for him to pick and
choose the laws he will defend.
For those who are saying “the ends justify the means,” imagine if the
shoe were on the other foot. What
if Republican Attorney General John Jay Hoffman of New Jersey decided not to
defend his state’s gay marriage law?
Or what about other hot button issues such as women’s reproductive
rights, state environmental laws, state gun laws, and laws regarding the death
penalty? The Attorney General’s
office may have a partisan bent to it, but that doesn’t mean that it’s
appropriate for them to pick-and-choose the laws that they agree with to
enforce. That’s a job for the
governor, state legislature, and when applicable, the courts.
Therefore, while I think the National Organization for Marriage are
overreaching in their quest to impeach Herring, I do feel that he has the right
idea, wrong action plan with this particular decision. Hopefully the people of Virginia and
their legislative officials will soon overturn this discriminatory ban, giving
Mr. Herring a law worth defending.
Until then, though, it is his responsibility to defend the law as it is
written.
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