In what appears to be the latest example in a trend of attorneys general refusing to defend laws passed by legislatures and voters, Virginia Attorney General Mark Herring announced Thursday that he will no longer defend his state's constitutional amendment defining marriage solely as the union of one man and one woman.
But a leading traditional marriage advocate is blasting Herring for casting aside the duties of his office to pursue a partisan agenda.
As a member of the state senate, Herring voted for the 2006 state constitutional amendment that defines marriage in the commonwealth as solely between a man and a woman. Now, less than two weeks after taking office as attorney general, he says the government is not only abandoning the defense of the law but actively joining a lawsuit filed against it by two same-sex couples.
“After thorough legal review, I have now concluded that Virginia’s ban on marriage between same-sex couples violates the Fourteenth Amendment of the U.S. Constitution on two grounds: Marriage is a fundamental right being denied to some Virginians, and the ban unlawfully discriminates on the basis of both sexual orientation and gender,” Herring said.
Herring won the Virginia attorney general's race by less than 1,000 votes and actually trailed heading into the recount against Republican Mark Obenshain. It was by far the closest statewide race in Virginia, which also included Democrat Terry McAuliffe's win over the GOP's Ken Cuccinelli in the contest for governor.
Liberty Counsel Chairman Mathew Staver is outraged at Herring's decision and told WND Virginia's attorney general doesn't seem to approach law enforcement much differently than President Obama and U.S. Attorney General Eric Holder.
"This is unfortunately the consequence of elections and you've got someone who is lawless. You really trace that back to President Obama and Eric Holder, when they decided to pick and choose, through the Department of Justice, which laws they wanted to defend and which ones they wanted to not just step aside but actually intentionally undermine.
"They did that with the federal Defense of Marriage Act, and now we see on the state level with this new attorney general, he does the same thing," said Staver.
"He is not upholding the law. He is actually undermining the very law that was passed by the people. This was a constitutional marriage amendment that was passed by 57 percent of the Virginian voters. As attorney general, his obligation is to defend the laws, whether passed by the legislature or passed by the people. His obligation is not to simply act as a king or a potentate, where he just wants to pick and choose which laws he's going to defend and which laws he's going to intentionally undermine," said Staver, who says this sort of action sets a precedent that could greatly damage the separation of powers.
"What would happen is if you had, for example, a Republican-led legislature and they passed laws that the Democratic governor or attorney general don't like, they would just simply refuse to defend them, or even worse, work to actively undermine them. That just makes no sense. That creates a system of lawlessness. It does not respect the rule of law, and it certainly does not respect the process of the people in protecting their right for representation and the right to vote," Staver said.
Herring is hardly the first official to declare he would not defend traditional marriage laws. In addition to Obama and Holder at the federal level, attorneys general in Pennsylvania and Illinois and the governor of Hawaii all unilaterally declared they would not defend state laws defining marriage as the union of one man and one woman.
The Washington Post reports Republican attorneys general have refused to defend other laws recently. Indiana's Greg Zoeller refused to enforce part of his state's immigration laws after the Supreme Court struck down similar provisions in Arizona's SB 1070. In Virginia, Herrings's predecessor, Ken Cuccinelli, declared one of former Gov. Bob McDonnell's education reforms to be unconstitutional and announced he would not defend it.
Staver said there are different levels of refusing to defend existing laws but believes the practice is never a good idea.
"There is precedent through history where attorneys general won't vigorously enforce a law, but that's a whole different ballgame, where you decide not to give as vigorous a defense or not to offer a defense than when you go into court and actually file a brief that undermines a case," Staver said.
"What you ultimately have happen here, whether it's done by a Republican or a Democrat, when a law is challenged and it's not vigorously defended, you ultimately have a system of lawlessness." he said.
Staver is also quick to assert that refusing to defend the institution of marriage is far more significant than it is with respect to other laws.
"We're talking about marriage. We're talking about a fundamental, observable relationship that has transcended governments. It wasn't created by a governor or a legislature. It predates the Commonwealth of Virginia. It predates the United States of America. It is an institution and a relationship that is from the very beginning of time to the present. It transcends cultures. It predates governments," Staver said.
"It is something that is part of the created, observable universe in which we live and it has been transmitted through history and times and cultures. To undermine that is not to be put into the same category ... as Ken Cuccinelli deciding not to defend a portion of an education law," he said.
Apart from the legal arguments surrounding the issue, Staver said there are obvious reasons why marriage should be set aside for the union of one man and one woman, from procreation to child rearing, and he contends even the most vigorous activism of same-sex marriage supporters cannot change those facts.
"Marriage as the union of a man and a woman is part of God's natural created order. You may not like it. You may disagree with it. You may not like gravity. You may disagree with it, but it doesn't matter what your opinion is on it. The fact of the matter is, it is what it is. It exists and it exists for a reason," he said.
"Marriage is between a man and a woman. Ontologically, man and women are made for one another in a way that two men and two women simply are not. It is through the union of a man and a woman that we procreate the next generation. That's why we have placed laws and policies around marriage to protect that very survival of our society," he said.
"Also, it's through the union of a man and a woman, husband and wife, male and female, that children have the best optimal environment in which to be raised. Moms and dads, male and female, bring different characteristics and components to the family relation and dynamic that two men and two women simply does not do.
"In fact, it is contrary to what two men and two women would do. When you eliminate one gender from the family, which is what same-sex marriage would do ... and skew the view of the missing gender, have some antipathy or opposition toward the missing gender, you ultimately harm children. When you harm children, you ultimately effect society," he said.
Liberty Counsel will likely get involved in the case, but Staver said it's not clear how or when the new defense team for the state law will be chosen. He suspects the case will end up in front of the Supreme Court within the next year or two but is not optimistic the justices will rule in the way he believes they should.
"On this issue and other moral issues like abortion, I have absolutely no trust in the United States Supreme Court. These issues of life and marriage should not be up for a popular vote by justices of the United States Supreme Court," he said.
"We've lived under the tragedy of abortion for 41 years. Fifty-six million people have died because seven people on the United States Supreme Court in 1973 and five people on the same court in 1992, ultimately voted, even though it has nothing to do with the Constitution," he said. "Frankly, I have no confidence in this court or any set of justices on the Supreme Court unless they're going to follow and adhere to the Constitutional principles and the rule of law."