Given that 31 states have constitutional bans on gay marriage, it would seem that advocates are reaching the maximum for potential success. Seventeen states now allow same-sex marriage, and four (Hawaii, Indiana, West Virginia, and Wyoming) have no constitutional provision in place, of which the last three are as likely to approve gay marriage as they are to approve of communism.
So what’s a liberal to do? As usual, California has blazed the trail for what I am terming “nullification by neglect,” and now the newly-elected Attorney General of Virginia, Mark Herring (who won his office by all of 905 votes out of over 2.2 million cast) has decided to take the same route:
Herring’s action is especially egregious considering that the U.S. Supreme Court has not ruled on the subject. It has invalidated a federal statute (the Defense of Marriage Act), and shot down an attempt to defend the will of the people of California by those very people, but it has not ruled on whether bans of gay marriage, duly passed by the citizens of the several states as amendments to their constitutions, violate the U.S. Constitution. What Herring has done is a) assume that a specific result will be forthcoming once the Supremes rule on the subject, and b) used that assumption to go AWOL in the performance of the duties of the office to which he was elected. Furthermore, he is claiming competence to decide matters of federal constitutionality, whereas his job description is for the state of Virginia only.
The Loyal Opposition expressed concern:
So what’s a liberal to do? As usual, California has blazed the trail for what I am terming “nullification by neglect,” and now the newly-elected Attorney General of Virginia, Mark Herring (who won his office by all of 905 votes out of over 2.2 million cast) has decided to take the same route:
Following a seismic political shift in Virginia’s top elected offices, the new attorney general has concluded that the state’s ban on gay marriage is unconstitutional and he will no longer defend it in federal lawsuits, his office said Thursday.You may recall that this was the strategy adopted by California governor Jerry Brown and his attorney general to undermine the legal support for Proposition 8. The U.S. Supreme Court ruled that “private citizens” do not have standing to defend the constitutionality of a state law or ballot proposition that amends the state constitution. The result is that any state attorney general can decide entirely on his own to retroactively overturn the electorally expressed will of the citizens of his or her state, simply by refusing to carry out his or her legal responsibility to defend the legality of state acts in court.
Virginia, widely considered a battleground state in the nationwide fight to grant same-sex couples the right to wed, will instead side with the plaintiffs who are seeking to have the ban struck down, a spokesman for Attorney General Mark Herring said in an email to The Associated Press.
“After a thorough legal review of the matter, Attorney General Herring has concluded that Virginia’s current ban is in violation of the U.S. constitution and he will not defend it,” spokesman Michael Kelly wrote.
Herring’s action is especially egregious considering that the U.S. Supreme Court has not ruled on the subject. It has invalidated a federal statute (the Defense of Marriage Act), and shot down an attempt to defend the will of the people of California by those very people, but it has not ruled on whether bans of gay marriage, duly passed by the citizens of the several states as amendments to their constitutions, violate the U.S. Constitution. What Herring has done is a) assume that a specific result will be forthcoming once the Supremes rule on the subject, and b) used that assumption to go AWOL in the performance of the duties of the office to which he was elected. Furthermore, he is claiming competence to decide matters of federal constitutionality, whereas his job description is for the state of Virginia only.
The Loyal Opposition expressed concern:
The Republican speaker of the Virginia House of Delegates said Herring was setting a “dangerous precedent.”Color me unimpressed. If Mark Herring has indeed abdicated his “constitutional and statutory obligation” to do his job, he should be impeached forthwith. As it is, I doubt seriously that anything will be done.
“The attorney general has a constitutional and statutory obligation to enforce and defend the duly adopted laws and Constitution of Virginia,” William J. Howell said in a statement. “This is not an obligation that can be taken lightly.”
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