Same-sex marriage (SSM)
Different views on SSM and marriage equality:
3. Must a state's Attorney General always
their state's constitution?
"LGBT" is an acronym referring to the Lesbian, Gay,
Bisexual, and Transgender/Transsexual community.
"SSM" is an acronym referring to marriage by same-sex couples.
Question 3: Must state Attorneys General always
support their state's legislation and constitution? Must the federal Justice Department always defend federal laws?
Under normal circumstances, part of a state Attorney General's job is to defend all laws passed by the state Legislature and to defend the state Constitution against lawsuits attacking it. Similarly, it is a major task of the federal Justice Department to defend federal laws in court. However, there have been exceptions that have involved same-sex marriage. Some examples:
- 2008 in California:
- The state Supreme Court legalized same-sex marriages in 2008-MAY.
- A citizen initiative called Proposition 8 was narrowly approved on election day in early November. It modified the California Constitution to ban SSMs once more. Same-sex marriages began. Over the next six months about 18,000 loving committed same-sex couples solemnized their marriages.
- Both the Governor and Attorney General refused to defend the Proposition court because they concluded that it clearly violated the U.S. constitution's 14th Amendment that requires governments to give everyone equal treatment and protection.
It was left up to the conservative Christian group that had initiated Prop. 8 to file a lawsuit to defend its own amendment. They lost at the District Court level, and at the 9th U.S. Court of Appeals. The U.S. Supreme Court restored SSM to California on a technicality, by deciding that the promoters of Prop. 8 lacked standing to appeal the case. Same-sex marriages restarted and have continued ever since.
The refusal by the state Attorney General and governor to defend Prop. 8 was severely criticized by religious and social conservatives because they believed that both officials had a responsibility that they accepted as part of their oath of office to defend all successful citizen initiatives in court. Some liberals also criticized the state officials because they were the only individuals with standing before the U.S. Supreme Court who could have defended Prop. 8. Any similar event in the future would effectively give the governor and Attorney General a veto power over all citizen initiatives.
- 2006 to 2014 In Virginia:
Mullins may not be aware that one of the defendants will be represented by a private lawyer paid for by the state while another is represented by the Alliance Defending Freedom, a conservative Christian group that is opposed to the freedom to marry for same-sex couples.
Perkins may not be aware that since 2006 when the amendment was passed, recent polls show that a significant majority of Virginia voters now support same-sex marriage.
A few days later, Perkins renewed his attack on Herring. He wrote:
"An attorney general has a duty to support those laws that are constitutional, and an attorney general has just as strong an obligation and duty to defend laws that he has concluded are unconstitutional..."
"Making matters worse, Herring's recklessness may be wreaking havoc on far more than Virginia. New reports suggest that as many as eight state attorneys general are considering similar moves, which would plunge the country into a legal chaos where leaders are bound, not by laws, but liberalism. ..." 5
- The Family Foundation of Virginia, a conservative group, called the development "disappointing and frightening."
Herring had campaigned for office expressing strong support for marriage equality and was elected on that basis. He is in an interesting situation because his oath of office requires him to follow both the U.S. Constitution, and the Virginia Constitution. Also, there is a tradition that Attorneys General support both the state's laws and Constitution. He believes that the equal protection clause in the 14th Amendment to the U.S. Constitution clearly require that states must not prohibit same-sex couples from marrying simply because of their sexual orientation, just as the same clauses clearly required that states must not prohibit couples from marrying just because of their race -- as ruled by the U.S. Supreme Court in 1967 in Loving v. Virginia.
Herring's decision is identical to those of two District Court Judges in Utah and Oklahoma who have issued rulings during the previous month. Both determined that clauses in their state constitutions that ban SSM were unconstitutional because they violated the 14th Amendment of the U.S. Constitution.
Josh Israel, writing for Think Progress, noted that Mark Herring recently said:
"After a very careful and thorough analysis, I believe Virginia’s ban on marriage between same-sex couples violates the 14th amendment of the United States Constitution. And as Attorney General I cannot and will not defend laws that violate Virginians’ rights. And so instead, the Commonwealth will be siding with the plaintiffs who have brought this case and be siding with every other Virginia couple whose right to marry has been denied. " 6
Israel also wrote:
"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 vows 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. 6 [Emphasis by us}
Supporting Herring's position is the former Attorney General. Ken Cuccinelli II (R). He once said:
"I will not defend what I, in my judgment, deem to be an unconstitutional law. If I determine it not to be constitutional. I will not defend it. My first obligation is to the Constitution and the people of Virginia. 6
It is very important to realize that in spite of the obvious conflicts about Attorney General Herrings position, few if any comments actually contain lies. They merely don't contain all of the facts.
The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.
- "Virginia to fight same-sex marriage ban," Washington Post, 2014-JAN=22, at: http://www.washingtonpost.com/
- "Va. AG: Same-sex marriage ban unconstitutional," CBS News, 2014-JAN-23, at: http://www.cbsnews.com/
- Paul Steinhauser & Halimah Abdullah, "Virginia attorney general: state's same-sex marriage ban unlawful," CNN, 2014-JAN-23, at: http://politicalticker.blogs.cnn.com/
- David Demirbilek, "Southern Poverty Law Center repeats 'hate group' claim about Family Research Council," Daily Caller, 2012-SEP-13, at: http://dailycaller.com/
- Tony Perkins, et al., "Pen-damonium under Obama's Executive Orders," Family Research Council, 2014-JAN-28, at: http://www.frc.org/
- Josh Israel, "Virginia’s Attorney General’s Decision Not To Defend Marriage Inequality Is Not Unprecedented," Think Progress, 2014-JAN-23, at: http://thinkprogress.org/
Copyright © 2014 by Ontario Consultants on Religious
Originally written: 2014-JAN-29
Latest update: 2014-JAN-29
Author: B.A. Robinson