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Religious Tolerance logo

Same-sex marriage (SSM)

Part B:
Different views on SSM and marriage equality:

3. Must a state's Attorney General always
support their state's constitution?

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"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.

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This topic is a continuation from the previous essay

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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:
    • The state's Republican-controlled Legislature had authorized an amendment to the state's constitution which banned SSM. Voters had approved it with a strong majority. The former Attorney General Ken Cuccinelli II (R) strongly opposed same-sex marriage. He had promised to defend the state's constitution's ban on same-sex marriages.

    • However, as a result of the 2003 election, Democrats were voted into the state's top offices. The new Attorney General, Mark R. Herring (D), announced his opinion that the amendment to the state constitution is clearly unconstitutional because it violates the equal protection clause of the 14th amendment of the U.S. Constitution.

    • During 2013, two lawsuits were filed in federal District Court to legalize SSM: Bostic v. Rainey and Harris v. McDonnell. During 2014-JAN, Attorney General Herring decided to offer testimony at one of these lawsuits, opposing the SSM ban.

    • Defendant Janet Rainey, the state registrar of vital records, agreed with the Attorney General's position, and is also asking that the court find the amendment unconstitutional.

    • Robert Barns writing for the Washington Post said that Attorney General Herring's brief to the court:

      "... will say that Loving [v. Virginia] upheld the fundamental right to marriage, not the right to interracial marriage. The question at stake now, the brief states, is not a right to same-sex marriage but whether the fundamental right to marriage can be denied to loving couples based solely on their sexual orientation." 1

    • Herring spokesman Michael Kelly wrote:

      "While Virginia has a storied place in the founding of our nation and has contributed to the development of our democracy, it has also been on the wrong side of court cases involving school desegregation, interracial marriage, and state-supported single-sex education. [Herring] will say today 'It's time for Virginia to be on the right side of the law, and the right side of history." 2

    • AG Herring referred to Loving v. Virginia -- the U.S. Supreme Court's ruling that legalized interracial marriage in the U.S. -- during his speech at a press conference, saying:

      "The Supreme Court is clear: The United States Constitution is the law of the land, the supreme law of the land. I believe the freedom to marry is a fundamental right, and I intend to ensure that Virginia is on the right side of history and the right side of the law. The last time Virginia was at the center of a debate on marriage, it lost on the law and on the judgment of history."

    • Pat Mullins, Chairperson of the Republican Party of Virginia issued a statement saying:

      "By running for the office, Mark Herring asked for the challenge of defending Virginia's constitution and all it contains. If Mark Herring doesn't want to defend this case, he should resign, and let the General Assembly appoint someone who will. Mark Herring owes the people of Virginia no less." 3

  • 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.

    • Tony Perkins is president of the Family Research Council, a conservative Christian para-church organization, which has been designated by the Southern Poverty Law Center as an anti-gay hate group. 4 Perkins said:
    • "This lawlessness is an insult to the voters of Virginia who approved the marriage amendment by a large majority. The 'left' is becoming a law unto itself." 3

    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."

      William J. Howell, the Republican speaker of the Virginia House of Delegates said that Herring was setting a:

      "dangerous precedent. ... The attorney general has a constitutional and statutory obligation to enforce and defend the duly adopted laws and Constitution of Virginia. ... This is not an obligation that can be taken lightly."

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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.

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This discussion continues in Part C

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "Virginia to fight same-sex marriage ban," Washington Post, 2014-JAN=22, at:
  2. "Va. AG: Same-sex marriage ban unconstitutional," CBS News, 2014-JAN-23, at:
  3. Paul Steinhauser & Halimah Abdullah, "Virginia attorney general: state's same-sex marriage ban unlawful," CNN, 2014-JAN-23, at:
  4. David Demirbilek, "Southern Poverty Law Center repeats 'hate group' claim about Family Research Council," Daily Caller, 2012-SEP-13, at:
  5. Tony Perkins, et al., "Pen-damonium under Obama's Executive Orders," Family Research Council, 2014-JAN-28, at:
  6. Josh Israel, "Virginia’s Attorney General’s Decision Not To Defend Marriage Inequality Is Not Unprecedented," Think Progress, 2014-JAN-23, at:

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Site navigation: Home > Homosexuality > Same-sex marriage > Menu > Different views on SSM > here

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Copyright © 2014 by Ontario Consultants on Religious Tolerance
Originally written: 2014-JAN-29
Latest update: 2014-JAN-29
Author: B.A. Robinson

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