While Virginians fall on either side of whether they believe homosexuals should have the right to marry their partners, and legality of the marriage rights in Virginia may come down to an interpretation of the U.S. Constitution, Prince William elected officials are making their voices heard on the matter.
Requests to Governor McAuliffe for Special Counsel
Republican state officials are fighting the Attorney General’s refusal to defend Virginia’s same-sex marriage ban, citing the state requires proper defense of the laws in its constitution. As such, the crux of their argument is not based on ethical concerns, but legal ones.
In response to Attorney General Mark Herring’s (D) announcement that he would not defend the 2006 same-sex marriage ban in the Virginia Constitution, which defines marriage as between one man and one woman, Del. Bob Marshall (R-Manassas), the author of the amendment, asked that Governor Terry McAuliffe (D) intervene.
In Marshall’s first letter to McAuliffe, dated Jan. 24, he requests the Governor appoint a special counsel to defend Virginia’s ban on same-sex marriage in the Commonwealth case of Bostic v. Rainey. Among the 33 signatures were those of Prince William Republican Delegates: Jackson Miller (Manassas/Bristow), Rich Anderson (Lake Ridge/Nokesville), Tim Hugo (Gainesville/Centreville) and L. Scott Lingamfelter (Woodbridge/Fauquier).
That letter said, “Attorney General Herring apparently is satisfied that the people of Virginia shall not be represented in court to defend the 2006 approved one-man, one-woman Marriage Amendment.”
McAuliffe responded to Marshall in a letter dated Jan. 27, saying that the appointment of special counsel is unnecessary as other clerks of the court are acting to defend the amendment.
McAuliffe's statement read:
I share your view that the effective administration of our legal system requires zealous advocacy on all matters before the courts. In the present case, Virginia’s same-sex marriage ban is being vigorously and appropriately defended by the Clerk of the Court for the City of Norfolk and the Clerk of the Court for Prince William County, as well as parties appearing amicus curiae in the case. Accordingly, I respectfully decline to appoint special counsel in this matter.
In response to that notice, Marshall then requested that the Governor ask his Attorney General to stand down in the Bostic v. Rainey case.
"Since you have decline to provide counsel to defend the people of Virginia in their Marriage Amendment, we request you to at least order the Attorney General to stand down, withdraw from the case and take his brief attacking our Constitution with him," Marshall's letter read.
Marshall’s letter goes on to say that the Virginia Constitution, which defines the Attorney General’s powers, does not include “attacking Virginia’s Constitution.” He sites a 1992 letter to then Attorney General May Sue Terry, by former Gov. Douglas Wilder, in which Wilder tells her that she would have to be removed from an investigation, saying, “You have condemned the client and then purport to represent the same. The attorney-client privilege is thereby breached.”
Marshall says that if the Governor does not remove Herring, “where he has prejudiced his client, the public of Virginia,” he is, “silent cheerleader to the unprecedented and unauthorized actions of the Attorney General.”
Attorney General says the Amendment is Unconstitutional
But Attorney General Mark Herring defends his right to not adhere to the Virginia Constitution, since, according to his interpretation, the amendment that bans same-sex marriage is in conflict with the U.S. Constitution.
Herring explains his argument in a guest editorial for the Richmond Times Dispatch, saying, “As we are taught from an early age, when a state law or a provision in a state constitution is found to be in conflict with the U.S. Constitution, the U.S. Constitution prevails.”
Herring said he has concluded that Virginia’s ban violates the Equal Protection and Due Process Clauses of the 14th Amendment, because it infringes on the rights of Virginians to marry, “a right the Supreme Court has long recognized as guaranteed.”
He assures readers that it is within his power to refuse to defend a court law; and that former Attorney General Ken Cuccinelli had done the same in a different case.
The Supreme Court's DOMA Ruling Affects Constitutionality of Same-Sex Marriage Bans
Herring can derive some of his interpretation from the Supreme Court’s landmark decision in June of 2013 to strike down DOMA (Defense of Marriage Act), which found the Federal Act to be unconstitutional. It however, did not go so far as to find a Constitutional right for marriage equality.
Following the DOMA ruling, New Jersey and New Mexico both affirmed the rights to same-sex marriage within their states.
According to The New Yorker, however, it was not until Dec. 2013 that federal court invoked the Windsor decision, which abolished DOMA, to say that state laws opposing same-sex marriage were unconstitutional.
In Utah, federal district courts ruled that the state couldn’t stop same-sex marriages. In Oklahoma, federal courts ruled that the state’s constitutional amendment that outlawed gay marriage was in violation of the U.S. Constitution.
Defense of the Virginia Constitution
Many Republican elected officials are not ready to abandon the Virginia Constitutional amendment, claiming it to be the will of the people, as it was put before the people in a 2006 referendum.
Del. Rich Anderson (R-Nokesville, Lake Ridge) believes it is the duty of the Attorney General to uphold all Virginia laws.
I was disappointed in his decision to no longer defend provisions of the Constitution of Virginia. I believe that his oath of office demands that he uphold the laws of Virginia, with a special respect for those provisions that have been fixed in the Constitution by a vote of the people. Historically, the federal government has largely left regulation of marriage and other specific issues to the states, and the U.S. Supreme Court in recent rulings has indicated this matter is best left to the states.
Anderson is interpreting the Supreme Court ruling in a different way than Herring has. The Supreme Court could have denounced all bans on same-sex marriage, but they stopped short of doing so. In effect, this signals they would rather leave this decision up to the states.
Anderson said he believes homosexuals should be afforded the same respect as all other citizens. However, even as views on same-sex marriage are in flux, he would rather Virginia law reflect the citizens' will. Should the marriage amendment be abolished, Anderson believes it should be an accurate reflection of the will of the people.
“While I believe that opinions on same-sex marriage are shifting, I also believe that we should seek changes to current Virginia law and our Constitution on the basis of overriding citizen sentiment conveyed to us by residents of our district, not on the basis of polling data that is often imprecise, unpredictable and continually shifting,” Anderson said.
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