Attorney General Mark Herring has failed to carry out his official duties. The General Assembly therefore must ensure that Virginia.s laws and constitution receive the vigorous defense that they deserve.
Whether or not one agrees with Herring that the 2006 marriage amendment violates the U.S. Constitution does not matter. More than 57 percent of voters supported it less than a decade ago, and neither the Fourth Circuit Court of Appeals nor the U.S. Supreme Court has ruled against it.
The attorney general swore an oath to defend the Virginia Constitution, even the provisions he no longer personally supports. If an attorney general concludes that he cannot provide a vigorous defense of the commonwealth.s laws and Constitution, he should appoint a special counsel to mount that defense.
Our system of justice is adversarial. It succeeds when litigants present the strongest arguments for both sides and an impartial judiciary decides which is the stronger. Even a guilty man deserves a defense, and so does a law that the attorney general no longer likes.
This is not a partisan issue. The next Republican attorney general could just as easily decide not to defend abortion rights or separation of church and state.
Indeed, the attorney general points to some of his GOP predecessors who declined to defend a state law or argued that such actions were appropriate. He cited those incidents as precedents to justify his course now. A precedent that was in error makes repeating the mistake no less improper. Those attorneys general were wrong then, and Herring is wrong today.
He takes things further, too. Where Attorney General Ken Cuccinelli declined to defend an education law, Herring has chosen not to defend the Constitution itself and has joined the other side of the litigation.
Del. Todd Gilbert.s bill is not perfect, but it is the compromise position that has come before lawmakers. Were I not to vote on it, I would abdicate my sworn duty, just as Herring abdicates his.
Under our government of checks and balances, when the executive branch fails in its duties, the legislature must act. I therefore support HB 706 so that the laws and constitution of the commonwealth will always be defended, even if the attorney general refuses to do his duty.