Recently, Attorney General Mark Herring has come under fire from Republican members of the General Assembly and the chairman of the Republican Party of Virginia for announcing his intent not to defend Virginia’s current same-sex marriage ban. Under the guise of defending the Constitution, gay marriage opponents are criticizing Herring’s decision and claiming that he is not living up to his job title. But this criticism is grossly unfair; it is within Herring’s rights to determine the constitutionality of a law and to prioritize which laws to enforce and defend.
William J. Howell, the Republican Speaker of the Virginia House of Delegates, claimed he was concerned about Herring’s decision and “the dangerous precedent it sets with regard to the rule of law.” But this precedent, dangerous or not, has already been set by Herring’s predecessor Ken Cuccinelli. During Cuccinelli’s term as attorney general, he chose not to defend a law that would allow the state to take control of deteriorating schools. His spokesman said this was because Cuccinelli found the law unconstitutional. At the national level, U.S. Attorney General Eric Holder has chosen not to enforce federal marijuana laws in states that have legalized marijuana, and he even discussed this decision here at the University. Clearly grappling with constitutionality and prioritizing issues is nothing new for an attorney general; if anything, Herring is just following in others’ footsteps.
Herring’s right to ignore unconstitutional state laws is even backed by Supreme Court justices. So why are we so fervently debating Herring’s decision?
The obvious answer is that gay marriage is still controversial, and its opponents are threatened by the potential overruling of the same-sex marriage ban. But masking personal opposition with legalese does a disservice to the very issue of constitutionality. These opponents are letting their political philosophies overwhelm their ability to reason the legality of an issue. That is a far more dangerous precedent to set than the one they accuse Herring of setting.
In contrast to these opponents, Herring is not simply declaring a law unconstitutional because he doesn’t agree with it; he has evaluated whether or not the ban conflicts with the U.S. Constitution, and in his expert legal opinion, it does. Herring points out in a recent op-ed for the Richmond Times-Dispatch that there is little attempt to refute his opinion on the constitutionality of the law, but only to challenge whether or not there is a precedent for his disagreement with it (which we know there is). This in itself indicates a personal bias against him and/or gay marriage.
Critics of Herring’s decision should be glad that this ban will have its day in court. If they really believe this law is constitutional, that belief will shortly be affirmed. Herring has taken all the steps befitting his title to refute this law, and he is fulfilling his oath to protect the Virginia and U.S. Constitutions, as well as to represent the interests of the people of Virginia. As Herring said in his op-ed, the attorney general is not a passive position: he or she “is elected to set the state’s legal position and speak on its behalf.” This is precisely what we expect when we cast our votes for attorney general, and this is precisely what Herring is doing.
Dani Bernstein is a senior associate Opinion editor for The Cavalier Daily. Her columns run Tuesdays.
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