Right wingers and homophobes (but I repeat myself) “outraged” over Attorney General’s announcement that he will not defend Virginia’s unconstitutional anti-gay-marriage amendment need to read this. Badly. Now. (great job by Josh Israel!)
And Herring’s description of his obligation is also absolutely correct. The oath of office for the Attorney General of Virginia – which Herring took earlier this month – includes a solemn vow 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.
Moreover, two recent Republican Attorneys General of Virginia — both Family Foundation favorites who had the support of Howell and Marshall — also made clear that they would not defend what they believed to be unconstitutional. In 2003, then-Attorney General Jerry Kilgore joined dozens of his counterparts from other states in signing a brief claiming that he was duty bound to challenge any statute he believed be unconstitutional. A year later, the Family Foundation’s Cobb donated to his gubernatorial campaign and she even served on one of his advisory boards.
Herring’s immediate predecessor, Ken Cuccinelli II, also refused to defend laws he deemed unconstitutional. Last year, one of his spokesmen noted, “If the attorney general’s analysis shows that a law is unconstitutional, he has a legal obligation to not defend it.” Indeed in 2009, Cuccinelli himself said in a debate, “I will not defend what I, in my judgment, deem to be an unconstitutional law.” “If I determine it not to be constitutional,” he explained then, “I will not defend it. My first obligation is to the Constitution and the people of Virginia.” That pledge did not stop the Family Foundation and from frequently hosting Cuccinelli at events, accepting his sponsorship, and cheer-leading for his political career.
Any further questions?