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    UPDATE: AG Herring to side with gay couples in same-sex marriage fight

    Virginia Attorney General Mark Herring – the commonwealth's first attorney general elected from Loudoun County – will fight to allow same-sex marriage in Virginia, Mr. Herring announced at a press conference in Richmond this morning.

    Elected this past November and after a weeks-long recount, Mr. Herring made gay marriage a key platform issue throughout his campaign against conservative and anti-gay marriage candidate Mark Obenshain.

    "My decision today is not based on my policy preference for marriage rights for same-sex couples," Mr. Herring said at the press conference. "It is based on my thorough analysis of the applicable law and the constitutional questions raised by this case."

    "As Virginians, we have much to be proud of," he said. "But too many times in our history our citizens have had to lead the way on civil rights, while their leaders stood against them. This will not be another instance. It's time for the commonwealth to be on the right side of history and the right side of the law."

    Mr. Herring told the Times-Mirror last year he believes the gay marriage ban in Virginia goes against the U.S. Constitution, despite a 2006 vote supporting the gay marriage restriction in the commonwealth's constitution.

    Similar to President Barack Obama, Mr. Herring said he's “evolved” on the issue.

    The Democratic attorney general's announcement jolted and vexed the state's Republican leaders this morning.

    Pat Mullins, chairman of the Republican Party of Virginia, said Mr. Herring should “resign” if “he doesn't want to do his job.”

    "By running for the office, Mark Herring asked for the challenge of defending Virginia's Constitution and all it contains,” Mr. Mullins said in a prepared statement. “The subject matter is irrelevant. Virginia's constitutional amendment and its challenges were well known when Mark Herring spent millions of dollars fighting to become Virginia's attorney. Attorneys don't get to choose whether or not they will defend their clients. Indeed, lawyers have a duty to select their clients carefully, because they are ethically bound to represent the claims of their clients, good or bad."

    Mr. Obenshain commented, “It is deeply inappropriate for the attorney general to use state resources to actively oppose a duly ratified constitutional amendment. Through this decision, Herring is effectively seeking to unilaterally reverse the actions of the General Assembly in adopting the Amendment, and the people of Virginia in ratifying it."

    Virginia voters approved the same-sex marriage ban 57 percent to 43 percent in 2006, but a Quinnipiac University poll in July found that 50 percent of registered Virginia voters support same-sex marriage, while 43 percent oppose it, according to the Associated Press.

    Two same-sex couples in Norfolk have challenged Virginia's same-sex marriage ban in federal court. Mr. Herring is expected to file a legal brief today to join the couples in the case, rather than siding with the commonwealth's prohibition.

    The attorney general today repeatedly affirmed that he believes Virginia's gay-marriage ban goes against the U.S. Constitution, and that state law cannot trump federal law. It is a state attorney general's duty, Mr. Herring said, to uphold the U.S. Constitution every bit as much as state law.

    Mr. Herring concluded, "I will fight to end this oppressive ban, and to guarantee the constitutional freedom for loving couples to marry in Virginia."


    This story has been updated from an earlier version.

    Contact the writer at .(JavaScript must be enabled to view this email address).


    Comments

    I wnder if Mark Herring would defend my right to be a Polygamist. Afterall, if I want to marry 2 women I should be protected under the equal protection clause of the US Constitution. Plus, all I want to be is happy, according to Herring, I should be able to marry anyone and whoever I want.


    Human rights are inalienable. Voters may vote however they please. They may try to take inalienable rights away. They may stain the constitution with their animus. They may use electoral victories to disrespect and dehumanize. But in the long arc of history, the arc that bends towards justice [righteousness], they will lose.


    So how does absence of discrimination give gays the special people a right to marry? You don’t have that right in Virginia cause over 1.3 million voters said you don’t.


    Shorter Chris N: “I don’t always give back-handed compliments, but when I do I leave everyone mystified.”


    stiflersmom, I feel your pain. But don’t even label these bigoted nut jobs “conservatives”. It’s insulting to REAL conservatives who know that part of being conservative means minding one’s own business. I know you never hear from them, but they’re out there. The GOP has been hijacked by whackos!


    “It is the job of the Supreme Court to determine if their[sic] is a state law that is un [sic] constitutional, not that of the Virginia Attorney General.”

    So the AG can enforce the state constitution on his own initiative, but to enforce the federal constitution, he needs a court order.

    Got it.


    Oh please save your feigned conservative outrage. Did anyone see liberals or moderates freaking out when AG Cuccinelli (arguably the most radical and extreme AG in recent history) refused to defend laws he saw as unconstitutional? Nope. The calls for impeachment are ridiculous that’ it is almost comical. Kind of hard to imagine Virginia being on the wrong side of history on this matter. The Marshall Newman amendment violates the VA & US constitution and it’s just that simple.


    Chris N: Explain to us how denying liberties to people you don’t like is American or supportive of liberty? In addition, please explain how hate and judgement are Christian virtues? If you were a true believer you’d shut up and let God do the judging. Evidently, you’re not a believer and just can’t control spewing hate.

    Yes, your bigoted views would fit well in Iran. The US system isn’t theocratic, but yours and Iran’s is. It is what it is and I’m simply reporting the facts as they are.


    “Anybody else notice that Herring did not have the guts to bring this up on the campaign trail?  What a wimp! “

    LOL! How is that being a wimp? None of you bigots in favor of denying liberty to gays would have voted for him anyway so, if anything, he may have lost votes by not mentioning it.

    Thanks for posting more of the usual brainlessness of the fake libertarian, fake Christian, Tea Baggers.


    Nice discourse @John Matthews. Referring to anybody who supports traditional marriage as “American, anti liberty, bigots” and suggesting that anybody who disagrees with you should “move to Iran.” Who would have thunk that the most thoughtful, respectful arguments on this page coming from your side have been from….David Weintraub?!


    To Attorney General Herring:  Please tell me what other laws you are not going to enforce since you feel you can pick and choose.

    Anybody else notice that Herring did not have the guts to bring this up on the campaign trail?  What a wimp!


    More cowbell, how did you jump to illegal aliens? The reason they’re not shot here is that the business owners who hire them, luring them here, like them too much and enjoy the fact that the rest of us are subsidizing what should be THEIR employment expenses. Oh, and many of these employers are Republicans.

    Back to the topic.


    cm_res: I didn’t introduce the concept of anti-gay prejudice, the proponents of these measures did. When the SCOTUS overturned Section 3 of the federal “Defense of Marriage Act,” the ruling was in part based on evidence presented at trial that the law was motivated by animus. *You* may not harbor animus toward LGBT people; I don’t know you and I couldn’t say. But it is a finding of fact in the DOMA case, in the Prop 8 case in California, and in several others, that a desire to harm LGBT people was evident during the process of passing these laws. And that is a constitutional no-no.


    Scrap my previous comment please:

    “It’s not a matter of stripping liberties, it’s a matter of gutting social norms. Thousands and probably millions of gays have been married to opposite-sex partners, and they’ve always had that right, the same right as everybody else. “

    LOL, you can’t be serious with this trip, can you? The liberty to marry the consenting adult of your choice is in question. Why would YOU FORCE someone to marry someone against their choice? Let me guess, you’re a “small gov’t” guy who wants the gov’t to enforce your liberty hating view on this?

    LOL at protecting the “sanctity of marriage” among heterosexuals with the great 42% record.

    Move to Iran if you’re that serious about your bigoted “social norms”.


    “Actually, we do know that Herring voted for the amendment…”

    No, and again, he said he voted to put it to a public referendum. Today (and in the debate) he says it’s not a proper government question. The story you cited says Herring, “voted for the constitutional amendment in 2006.” But, again, that wasn’t possible in 2006. The bill he voted for was not in favor of the amendment, but in favor of putting the amendment on the ballot in 2007. All 140 members voted to do that.

    If you believe the 2006 GA vote reflected support for the amendment by every member of the GA, then you are saying that openly gay GA member Adam Ebbin also supported the amendment. I can confidently assure you that was not the case.


    “Jeanne, I don’t believe anyone knows if Mark Herring voted for the amendment or against it, except Mark Herring.”

    Actually, we do know that Herring voted for the amendment, because he said so during the first debate between the two nominees for the attorney general:

    FTA:  “During the first debate between the two nominees for attorney general, Sen. Mark R. Herring a Loudoun Democrat, said he voted for the constitutional amendment in 2006 but has changed his views. “I don’t believe the state should decide who you can love and marry,” Herring said.”

    http://www.dailyprogress(dot)com/news/both-sides-in-virginia-s-same-sex-marriage-debate-eagerly/article_35eb221a-db97-11e2-b08e-001a4bcf6878(dot)html


    It doesn’t matter what the will of anyone is regarding stripping liberties of people they don’t like.

    It’s not a matter of stripping liberties, it’s a matter of gutting social norms. Thousands and probably millions of gays have been married to opposite-sex partners, and they’ve always had that right, the same right as everybody else.

    What these folks want and are doing is changing the entire definition of traditional marriage. Virginia residents already debated and settled that question several years ago. But Mark Herring has, in effect, become a one-man wrecking ball against the will of the people. No liberties are up for stripping, he’s just manufacturing new ones.


    @John Matthews, If this was Iran, a lot of illegals would be shot or in jail… As I stated before, I really don’t care whether gays can marry… However, Mark still comes off looking corrupt since it’s not priorty 1 in VA.


    It’s amazing how many of the “small gov’t” advocates are first in line to have the gov’t involved in people’s personal business which is none of they’re damned business.

    Since when is “Conservatism” about meddling in the personal affairs of others? Oh right, since the GOP was taken over by lunatics.


    It doesn’t matter what the will of anyone is regarding stripping liberties of people they don’t like. That’s not how this country operates.

    Move to Iran if you want a government like that.

    Buh bye!


    Jeanne, I don’t believe anyone knows if Mark Herring voted for the amendment or against it, except Mark Herring.

    In 2006, every single member of the state senate and house of delegates voted in favor of a public referendum, allowing every single voting Virginia to vote for, or against, the amendment. Why would they _all_ do that, considering that some (such as openly gay delegate Adam Ebbin) encouraged people to vote against it in the general election in 2007?

    Simple: they voted for a public referendum in the hope that the amendment would be defeated. Today, polls show that it most likely _would_ be defeated. But, that’s not what happened in 2007. Instead, we passed the only entry in Virginia’s bill of rights that prohibits freedom. (Really, it’s a sad thing to see in the midst of an otherwise stellar list of liberties that are the very first article to our state’s constitution, so anomalous that it wasn’t even given a number of its own; it is titled “15-A,” since it curtails the freedoms of the one before it.)

    The entire General Assembly voted to put this question on the general ballot, but not all of them expected it (or wanted it) to pass. Ask Mark what he did on election day in 2007 before you presume to say he voted “for” the now-unconstitutional ban on personal liberty in Virginia.


    “You mean the will of some”
    I mean the will of the overwhelming majority of voters who passed the amendment 57% - 43%. Use whatever adjectives you like to describe them, but their opinion prevailed.

    “If you want to change the U.S. Constitution to reflect your prejudice against LGBT people, feel free to try. There is a procedure for that.”
    It’s sad to see the prejudice card or the race card or the bigot card get played in these kinds of debates, rather than people coming to the table believing that it’s perfectly reasonable for good people to differ in their opinions of a matter. Instead, some people seem to think that a different opinion can only be explained by a disorder of some sort. You don’t know what prejudice I have or don’t have, if any. As I noted earlier, I’m more concerned about the principle of our democracy that’s at stake. But since you pointed out that there is a procedure, I’ll note that VA has a procedure too and it was followed. In other words, it’s the people on the other side of the issue who failed in that procedure. If they are so confident now that the VA law conflicts with federal law, there should be no need for our AG to actively spend the commonwealth’s time and money working against it, right?

    “...he sees no good faith arguments to be made.”
    I think that’s a spurious claim at best. He perhaps sees no good faith arguments he is willing to make himself - that is quite different from there being no good faith arguments to be made whatsoever. Certainly Cuccinelli was prepared to defend it as Obenshain was. Herring could always call them up for guidance! Since he is an attorney, he’s been fully trained in arguing both (or all) sides of a matter. The point is, he could argue for the law if he wanted to. What he’s doing, though, is not only to leave the people’s will undefended, which is bad enough, but also to actively work against it with our resources which I consider unethical if not verging on treasonous.

    “I am certain his present critics would, for example, claim that defending a provision that denied women the vote was a waste of taxpayer dollars (since, of course, the federal guarantee of equal protection would render any such defense a failure)”
    Absolutely I would expect him to defend it. At the very least, I would expect him not to throw in state resources to work against it. Since the court is “of course” going to rule against Virginia in this case, then there is no logic at all in his decision to file in support of the plaintiffs, it’s unnecessary and wasteful.

    “When they conflict, it is settled law that the United States constitution prevails. Those calling for him to “defend” the state constitution are, by their own logic, calling for him to violate his oath.”
    Those of us calling for him to defend the will of the people of the state are by no means calling for him to violate his oath. We’re calling for him to be the AG - not to make himself the judge.


    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.


    All attorneys are required to make their arguments in good faith that the law allows the conclusion they are asking for. Herring has clearly articulated that, owing to the Supremacy Clause (among other things), he sees no good-faith argument to be made.

    And, really, this notion that he is “bound” by his oath to argue whatever our state constitution says, without regard to its conflict with the United States constitution is absurd. If the issues were different, I am certain his present critics would, for example, claim that defending a provision that denied women the vote was a waste of taxpayer dollars (since, of course, the federal guarantee of equal protection would render any such defense a failure).

    More to the point: even if one wishes to misconstrue the Supremacy Clause, all of the critics here saying, “He has violated his oath to defend the Virginia constitution” continue to ignore the fact that he has an oath to defend two constitutions, not one. When they conflict, it is settled law that the United States constitution prevails. Those calling for him to “defend” the state constitution are, by their own logic, calling for him to violate his oath.


    Who needs a State Constitution if nobody is going to obey it when they dislike the law?  If you don’t like the law, there is a process for changing it. A process WE THE PEOPLE will vote on.

    It is becoming clear that Democrats believe in Tyranny rather than The Rule of Law.


    “Lacking such a ruling he is bound by Oath to defend the Virginia Constitution.”

    False. The oath taken by a Virginia elected official begins with the words: “I do solemnly swear that I will support the Constitution of the United States, and the Constitution of the Commonwealth of Virginia.” Article VI, Clause 2 of the United States Constitution makes clear that the federal Constitution takes precedence over the Virginia Constitution. If the Attorney General comes to the determination - which is precisely his job - that the two are in conflict, he is legally bound to uphold the U.S. Constitution, period.

    Moreover, Virginia law requires that the policy continue to be enforced pending a court ruling that overturns it as unconstitutional. That is what is being done here. The AG is doing exactly what the rule of law requires. Read his brief.


    It is the job of the Supreme Court to determine if their is a state law that is un constitutional, not that of the Virginia Attorney General.  Lacking such a ruling he is bound by Oath to defend the Virginia Constitution.  He cannot pick and choose which laws he likes and which ones he doesn’t like.  Issue aside, he has clearly violated his Oath of Office.


    The people, through a popular referendum, have no more right to violate the U.S. Constitution than does a legislature. If you want to change the U.S. Constitution to reflect your prejudice against LGBT people, feel free to try. There is a procedure for that.


    ” In the mean time, his duty is to defend the will of the people by whose pleasure he serves in office.”

    You mean the will of some anti American, anti liberty, bigots he serves?


    Right. So as it’s written, he should let the judges be bound to rule - or not - based on the Supremacy Clause. In the mean time, his duty is to defend the will of the people by whose pleasure he serves in office.


    “As an Independent, disliking both parties, I feel this should be left up to the people of VA to vote on.”

    What country is this, Iran? We don’t vote on denying liberty to people we don’t like, here. In before “states rights” is invoked by the same people who claim that the Civil War was about states rights. Yeah, states rights about SLAVERY!


    The words “We the People…” are followed in the United States constitution by these words:

    This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

    That’s not a “red herring.” That’s the Supremacy Clause, just as we the people wrote it.


    “I dislike the appearance of corruption in any political office”

    Why Herring’s off to great start. 1st action -stopped former ag’s outside counsel for former guv, $178000, taxpayer funded.


    @David Weintraub,As an Independent, disliking both parties, I feel this should be left up to the people of VA to vote on. To me, the AG is wasting time and money on an issue that involves less than 5% of Virginians. How about Mark looking into why the Dulles Toll Road isn’t free, since it was promised that once it was paid off, it should be free road to the Northern va taxpayers.
    I dislike the appearance of corruption in any political office…Mark is off to a bad start in my view. Oh, and me personally… I don’t really care one way or the other on the gay marriage.


    “I will not defend what I, in my judgment, deem to be an unconstitutional law. If I determine it not to be constitutional,I will not defend it.” Virginia AG (and Tea Party Mascot) Ken Cuccinelli, in 2009. I don’t remember any calls for impeachment back then.


    I submitted a similar comment last night but it doesn’t seem to have made it through the system. Trying again because this is important. @Stevens Miller & @David Weintraub: The first three words of the US Constitution are “We the people”. The people give the authority to the document. And the people themselves - not just the VA legislature - approved the amendment. The ‘Constitution Defense’ is a herring - a red herring - he is subverting democracy to advance his social agenda and actively employing the commonwealth’s resources against itself - against the people’s will. I also reject the premise that his opinion trumps the people’s. That is patently absurd, at least in a democracy which technically this commonwealth and country still operate under. His opinion takes a back seat to the people’s opinion. Finally, let’s also remember how the US Constitution came into existence. The people understood their government 250 years ago was actively working against their will. They took up arms, overthrew that government, and wrote the great document that Herring and others would pervert into shield to excuse their activism. I don’t care what the issue is - this is not right.


    Wow! Look at all the bigots who support denial of liberty! Some of them even call themselves “libertarians”. Are you guys serious?


    So whose job is it to defend the will of the People of the commonwealth who voted by a clear majority to ratify the amendment? Because I think that’s an important difference between choosing not to defend any old law the legislature passes and this one that was specifically approved by the people. It doesn’t even matter what the issue is, it matters that he’s using the resources of the commonwealth against itself - when the people have clearly spoken. The fact that the US Constitution is being leaned on to justify this action is absurd. Let’s think about how the US Constitution came into being. It exists because people who lived on this very soil around 250 years ago understood that their government was working against their will - and they took up arms, overthrew that government, and established a new one that was meant to be, in the words of Lincoln, of the people, by the people, and for the people. So again, why is AG Herring defying the people in the name of that Constitution when ‘We the people’ are who give that document its authority and ‘We the people’ likewise directly and overwhelmingly approved the amendment? I’ll tell you why. Because the Constitution defense is itself, ironically, a herring - a red herring - the reality is that the AG is willing to pervert democracy in the name of his social political agenda.


    Some of these silly commenters need to read the brief filed by the AG so they understand the duty of the office. Josh Israel explains:

    “The oath of office for the Attorney General of Virginia—which Herring took earlier this month—includes a solemn vows first to ‘support the Constitution of the United States’ and second to support ‘the Constitution of the Commonwealth of Virginia.’ Article VI, Clause 2 of the United States Constitution makes clear that the federal constitution takes precedence over state constitutions—so when the two are in conflict, it is absolutely up to the Attorney General to make that decision. As the person duly elected to make that judgment, Herring, rather than an un-elected lobbyist or state legislators who choose to ignore the federal constitution’s supremacy, is exactly the person tasked by Virginia’s citizenry with determining which laws to defend.”

    How quickly they forget - Ken Cuccinelli also declined to defend laws when he believed they were unconstitutional. That’s part of the AG’s job, whether we happen to agree with the specific opinions or not. The AG is not meant to be an automaton, blindly defending all laws, “no matter the law.” They are supposed to exercise independent constitutional judgment. There is no presumption that a legislature will only enact constitutional laws.

    http://www.loudounprogress.org/2014/01/23/the-injustice-of-virginias-position-in-loving-will-not-be-repeated-this-time/


    Each of us who has ever served in elected office in Virginia swore an oath that begins with the words, “I do solemnly swear that I will support the Constitution of the United States, and the Constitution of the Commonwealth of Virginia…”

    If Mark believes (as I do) that the Constitution of the United States prohibits enforcement of the Marshall-Newman Amendment, then he is bound by his oath not to defend it.


    Elections have consequences, some more than others it seems. By a vote of 57% to 43% - a significant majority - the People of Virginia approved the amendment. Meanwhile, fewer than 1,000 votes out of over 2 million cast put Herring in the AG’s office - the slimmest of slim margins. He certainly enjoys no ‘mandate’ from the electorate to make any major changes let alone something like this which, I reiterate, the People themselves have willed. Regardless of where you stand on gay so-called marriage, a move like Herring’s should send shivers down the spine of any citizen. It’s an abomination of democracy.


    Finally got some common sense and legal understanding that discrimination no matter when where or how is illegal, State sanctioned or not.  Democrats, making this State worth living in.  Yea Baby.


    We The People of Virginia voted and Passed this Amendment to the State Constitution. The AG is not executing the duties of his office, he needs to be impeached.


    Legislating immorality for votes. He does not get to pick the laws he is to defend that’s why we have a assembly, senate and voters. I’ll sign your impeachment petition! Cuccinelli was called a bully for adhering to the law on abortion now we have flip-floper telling us the political apparatus does not work if the polls show differently. There is a method then there is this madness.


    Substitute “civil rights” wherever you see “gay marriage” in this story and the comments and you’ll have a really good idea what it was like to live in Virginia during the late 50s - 70’s.  Kudos to Mark Herring for trying to put Virginia on the right side of history for a change.


    the job of the AG is to defend the laws of the State. No matter the law. This man needs to be removed from office. Impeach Herring!!!!


    Wow, that didn’t take long.

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