John M. Becker

As Right Whines, Virginia AG Asserts Authority

Filed By John M. Becker | January 23, 2014 2:30 PM | comments

Filed in: Marriage Equality, Politics
Tags: Bryan Fischer, evolution, gay marriage, Mark Herring, marriage discrimination, marriage equality, privilege tantrums, same-sex marriage, Tony Perkins, Virginia

temper_tantrum.jpgThis morning Mark Herring, Virginia's new Democratic Attorney General, made headlines when his office announced that it finds the state's marriage discrimination amendment unconstitutional and will no longer defend it in federal court. Herring also went a step further, joining the plaintiffs in a lawsuit challenging the measure.

Predictably, proponents of marriage discrimination exploded. Victoria Cobb, president of the Virginia anti-LGBT group Family Foundation, called Herring's move "disappointing and frightening."

"It's disappointing that he wouldn't be clear about his intentions on this issue while campaigning for the office. More importantly, it's frightening that politicians like the attorney general feel that they can pick and choose which aspects of the Constitution they deem worth to defend and apply. Whether one agrees with the marriage amendment or not, the idea that over a million Virginia citizens can be left defenseless by the attorney general after legally voting for an amendment that he himself supported is chilling."

Anti-gay Republicans piled on as well. House Speaker William Howell blustered:

"Less than two weeks ago, Mark Herring took an oath and swore to preserve, protect and defend the Constitution of Virginia. I am very concerned about his announcement today and the dangerous precedent it sets with regard to the rule of law.

"The attorney general has a constitutional and statutory obligation to enforce and defend the duly adopted laws and Constitution of Virginia. This is not an obligation that can be taken lightly. The attorney general's decision today demonstrates a great deal of disregard for that obligation, as well as the legislative and democratic processes by which those laws are adopted."

Delegate Robert Marshall added, "We appropriate money for people to defend the constitution, not to attack it. This is a complete dereliction of his duty."

National conservative voices joined the funeral chorus as well. Fox News complained that by refusing to defend marriage discrimination, Herring is "throwing out" the Tenth Amendment. The Family Research Council, a national anti-gay hate group, called Herring's move "lawlessness" and "an insult;" hate group spokesman Bryan Fischer smeared him as an "[advocate] for deviancy."

But in a press conference held today to explain his decision, Attorney General Herring stood firm. "...an unconstitutional law is infringing on the rights of Virginia families, [and] I have a duty and the authority to act to protect them and their rights."

Watch, after the jump.

As Josh Israel notes at ThinkProgress, Herring's decision is on absolutely solid legal ground.

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.

Furthermore, Israel points out that Herring's predecessor, right-wing darling Ken Cuccinelli, also refused to defend laws he concluded were unconstitutional, including a school takeover law championed by Republican then-Governor Bob McDonnell. Yet the Family Foundation was one of Cuccinelli's strongest supporters.

Clearly, the right-wingers' hysterical whining about Herring's decision to stand on the right side of history is both cravenly opportunistic and intensely hypocritical. (Try to contain your shock.) But I have a sneaking suspicion that the reason they're screaming so loud is because they realize they're losing the battle against marriage equality, and far sooner than they expected.

RELATED: In other Virginia LGBT news, this week Democrat Patrick A. Hope introduced legislation in the House of Delegates that would ban the discredited and dangerous practice of "ex-gay therapy" from being offered to minors. The bill is not expected to clear the GOP-controlled body, but getting the conversation started is still an important step forward.

And yes, the right is whining hysterically about it.


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