By Joe Beck
Two legislators from the Northern Shenandoah Valley are ripping Attorney General Mark R. Herring for refusing to defend the state constitution's ban on same sex marriage, a law that Herring says violates the U.S. Constitution.
"Not two weeks ago, I watched the attorney general swear an oath before God and the people of Virginia to defend the constitution," Del. C. Todd Gilbert, R-Woodstock, said in an interview Friday. "It didn't take him long to find a way out of that."
State Sen. Mark Obenshain, R-Harrisonburg, lost to Herring by a few hundred votes in the race for attorney general. Obenshain issued a written statement accusing Herring of trying to undo the same sex marriage ban after the General Assembly and voters had approved it in 2006.
Herring has declared that he not only will refuse to defend the Virginia Marriage Amendment, he will be filing a brief in support of gay couples seeking to overturn it in federal court.
The attorney general is the commonwealth's lawyer," Obenshain said. "It is deeply inappropriate for the attorney general 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."
Herring voted for the amendment as a state senator, but announced Thursday that he had "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 some Virginians, and the ban unlawfully discriminates on the basis of both sexual orientation and gender."
On Friday, the House of Delegates Courts of Justice Committee voted 13-7 to approve a bill co-sponsored by Gilbert that would give legislators authority to defend state laws in court.
The bill specifically mentions situations in which the constitutionality of a law passed by the General Assembly is in dispute "and the governor and attorney general choose not to defend the law."
Herring's fellow Democrat, Gov. Terry McAuliffe, has said little about the attorney general's stand, but McAuliffe left little doubt during the fall campaign that he supported gay rights, including same sex marriage.
Gilbert said it is too early to assume the heavy criticism Republicans have directed at Herring in the last day signals that McAuliffe's chances of obtaining bipartisan cooperation from the GOP on other state issues has begun to fade.
"We are still eager to work with the governor, and he hasn't immersed himself in that situation yet," Gilbert said, referring to the same sex marriage debate. "I don't think it's affecting anything yet."
Contact staff writer Joe Beck at 540-465-5137 ext. 142, or firstname.lastname@example.org