“Bob Marshall is not, and never has been, an attorney.”

I continue to be reminded, sometimes several times in one day, of the comment in which anti-gay and anti-labor activist lawyer James Young informed me that “Bob Marshall is not, and never has been, an attorney.”

It explained a lot, and for that I thank him. The Richmond Times-Dispatch reports the following:

Del. Robert G. Marshall, R-Prince William, said today that he is working with lawyers to file a complaint with the Virginia State Bar against Attorney General Mark R. Herring over his refusal to defend Virginia’s same-sex marriage ban in federal court this week.

Marshall sponsored the 2006 amendment to the state constitution.

“I want the same discipline meted out against him that would be meted out against any attorney similarly situated,” Marshall said in an interview Monday afternoon.

“If after a pleading has been filed an attorney decided that his client is guilty, what would the bar do with that attorney? And they better not go soft because he is the attorney general,” he said.

I suppose that never having been an attorney could explain Marshall being unaware that the legal obligations of a private attorney and a public one, such as an attorney general, are quite different (although that hasn’t prevented me from being aware of it – and I don’t sit on a legislative body). Surely Marshall has some attorney friends in the House of Delegates who could have explained this to him:  

A private attorney’s obligation is to represent the interests of his or her client, regardless of belief one way or the other about that client’s guilt. An attorney general’s obligation, on the other hand, is to see that justice is done by upholding the U.S. Constitution. If the “client,” which is in this case the legislature and people of Virginia, is legally in the wrong, it is the obligation of the attorney general to take the side of the controlling law at that time – not to represent the position of the “client,” as Marshall is presuming.

Charlottesville attorney Lloyd Snook explains this, and some of the other misconceptions troubling Herring’s detractors, in an interview yesterday with Coy Barefoot on Inside Charlottesville. Snook makes it clear that there are constraints on an attorney general required to take a position on a legal challenge to state law:

The state has become involved [in this case] because it’s been sued with the allegation that the state’s ban on same sex marriage violates the federal Constitution, based primarily on recent changes in the law. When the constitutional amendment was first adopted six or seven years ago, we did not have the U.S. Supreme Court saying, as they said last summer, that the Fifth Amendment, in that case, prohibits a state from discriminating against same sex couples.

…When the judge asks the attorney general’s office on Thursday, in oral arguments…”Counsel, are you telling me that the U.S. Supreme Court, in the Defense of Marriage Act case last year, didn’t say that this ban on same sex marriage violates the Constitution?” And that attorney’s got to sit there and say either “Yes, that’s what I’m saying,” or “No, that’s not what I’m saying.”

There’s no way of avoiding the fact that every court – “in both liberal areas and conservative areas” – that has looked at this issue since the SCOTUS decision in June that overturned DOMA has interpreted that decision as saying that it’s a violation of the U.S. Constitution to discriminate against same sex couples. That interpretation is now controlling law, and Herring is not at liberty, even if he wanted to, to pretend otherwise.

One of the things he can’t do is he can’t take a position that he knows to be garbage. He can’t take a position that he does not believe…the issue is not “does he like it,” but “does he believe it to be correct?” The issue is does he believe it to be constitutional. There are plenty of instances where attorneys general and commonwealth’s attorneys have argued for a result that they don’t personally like, but which they believe to be constitutional. For example, the death penalty. I know prosecutors who are morally opposed to the death penalty, but they nonetheless will defend the death penalty statute if somebody tries to argue that it’s unconstitutional.

Herring can’t uphold his oath of office and at the same time engage in intellectual dishonestly by answering the judge’s question with what he knows is a lie. Bluntly put:

CB: So essentially we had a decision in the Supreme Court that, for all intents and purposes, invalidated that amendment to the Virginia constitution.

LS: That’s right.

CB: And Herring is recognizing that and saying I have no legal basis to go into court and defend what the Supreme Court has already said is unconstitutional.

LS: Right. [Emphasis mine]

Richard Socarides explains further how we arrived at this moment from the June SCOTUS decisions on DOMA and California’s Prop 8:

Taken together, the decisions indicated that while the Supreme Court was willing to substantially advance the cause of same-sex marriage, it was not yet ready to find a constitutional right to marriage equality. Seven months later, it is now clear that gay-rights advocates and lower-court federal judges are not inclined to accept further delays – and, moreover, that the language of the Windsor decision may have been so powerful that the Court in fact accelerated a movement it sought to temporarily restrain.

…Roberta Kaplan, the attorney who argued the Windsor case in the Supreme Court, explained how the ruling had led to results beyond what the Court may have intended originally. “It’s not the holding in Windsor that is so controlling right now,” she said. “It’s the logic and reasoning behind the Court’s decision-namely, that gay people deserve the same legal rights and protections as everyone else.” [Emphasis mine]

Returning to Mr. Marshall, who, to be fair, is not thinking clearly due to the stunning speed with which his whole world has been upended:

Marshall compared the state’s lack of defense with the infamous Dred Scott case, a landmark 1857 U.S. Supreme Court decision that found that free or enslaved blacks had no standing in federal court.

“Herring has put all of us in the position of Dred Scott, who had no right to counsel in federal court,” Marshall said.

I don’t believe, empathy aside, that never having been an attorney can fully explain thinking that the Commonwealth of Virginia is in the same position as an enslaved African American man who was told that he had no legal recourse in federal court because he couldn’t be considered a citizen. Moreover, the SCOTUS decision at issue held that the federal government could not regulate slavery in the several states that included Virginia, making the remark preposterous on more levels than I care to contemplate.

Had he read Herring’s memorandum or any of the other documents filed with the District Court in Bostic v. Rainey, Marshall would know that his amendment will be vigorously defended by other parties, including counsel for Norfolk County Court Clerk George Schaefer and Prince William County Circuit Court Clerk Michele McQuigg, counsel for The Family Foundation of Virginia, and counsel for something called “Professors in Support of Defendants’ Motions for Summary Judgment,” not to mention the many briefs filed while Marshall-Newman proponent Ken Cuccinelli was still in office. It’s unlikely that they will have come up with any arguments that haven’t already been heard and dismissed by 9:00 am Thursday, but our attorney general wouldn’t have been able to solve that problem even if he wanted to.