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Cuccinelli Accuses Attorneys General of Attacking Laws They’re Supposed to Defend

On same-sex marriage: “An attorney general must defend anything not blatantly unconstitutional, not ones that he or she really want to be unconstitutional."

by
Rodrigo Sermeño

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March 20, 2014 - 11:39 pm
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WASHINGTON – An increasing number of attorneys general are refusing to defend state laws banning same-sex marriage, drawing fire from critics who believe it is their duty to protect these statutes against challenges under federal law.

Since two landmark decisions on same-sex marriage by the Supreme Court last year, gay marriage advocates have turned their attention to legal challenges to state laws prohibiting such unions.

After the Supreme Court left standing in June an order striking down California’s ban on gay marriage, without ruling whether similar laws should remain in place, federal appeals courts have been left dealing with the issue.

Gay couples are filing lawsuits in states where voters approved anti-gay marriage amendments to their state constitutions. Judges have recently struck down same-sex marriage bans in Kentucky, Ohio, Virginia, Oklahoma, Utah, and Texas.

The Supreme Court issued two major rulings on same-sex marriage last year. In United States v. Windsor, the court found unconstitutional a part of the Defense of Marriage Act (DOMA), which withheld federal recognition of same-sex marriages and denied federal benefits to those in such unions.

In the other case, the Supreme Court allowed to stand a federal judge’s opinion that California’s Proposition 8, which bans same-sex marriage, was unconstitutional.

In 2011, Attorney General Eric Holder refused to defend DOMA in court, but announced the Department of Justice would continue to enforce the law while it existed.

Same-sex marriage is legal in 17 U.S. states and the District of Columbia.

The nation’s highest court has not weighed in on whether same-sex couples have a constitutional right to marry, shifting the legal battleground, for now, to the states.

Six attorneys general – all Democrats – have decided against defending their states’ gay marriage bans from challenges. Attorneys general in Nevada, Oregon, Pennsylvania and Virginia have refused to defend bans on gay marriage. Similarly, attorneys general in California and Illinois refused to defend bans that were later overturned by the states.

Speaking in a panel discussion at the Heritage Foundation on Friday, former Virginia Attorney General Ken Cuccinelli said attorneys general can only decline to defend laws that are “blatantly unconstitutional.”

“The standard for attorneys general declining to defend state law or constitutional provision has been consistent for many years,” Cuccinelli said. “An attorney general must defend anything not blatantly unconstitutional, not ones that he or she really want to be unconstitutional, but that it is, as a matter of objective law, clearly against the Constitution.”

Last month, Holder said in a New York Times interview that state attorneys general do not have to defend laws they consider discriminatory, including bans on gay marriage. A few days later, Holder argued in a speech to the National Association of Attorneys General that laws distinguishing among people based on their sexual orientation violate the Constitution’s equal protection clause, citing the Supreme Court’s decision in United States v. Windsor.

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All Comments   (13)
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In my youth, the Supreme Court declared that the 14th amendment did not provide equality between the sexes. So Congress passed ERA. But something happened, perhaps the women of New York voting down the state ERA (they didn't want to be brought down the men's level), and states stopped ratifying, and started rescinding. Congress took the unprecedented step of extending the ratification period, but nothing happened.

So after the people of the United States declared they did not want the 14th amendment applied to sex (gender) the courts just changed their minds and decided it did, because the people didn't co-operate? And now we are going past that and applying it to sexual practices?
30 weeks ago
30 weeks ago Link To Comment
They are correct that they should not defend laws they consider unconstitutional. And they should be removed from office. But they probably have new legislators.

PS - The judges should perhaps appoint a council to defend the law.
30 weeks ago
30 weeks ago Link To Comment
Cucc wants everyone in government to be a drone.
31 weeks ago
31 weeks ago Link To Comment
Very simple do not do you job, you are fired! Simple solutions for people who think they are above the law.
31 weeks ago
31 weeks ago Link To Comment
"Herring also announced he would side with plaintiffs in lawsuits challenging the ban. In a statement announcing his decision, Herring said his state has argued on the wrong side of some of the nation’s landmark cases and that it was “time for [Virginia] to be on the right side of history and the right side of the law.”

Mr. Herring's public statements wherein he announces that he will refuse to fulfill the obligations of the office which he was elected to are grounds for his immedaite impeachment and removal from office.

Let's be clear on something. Heterosexual marriage is protected in Virginia by the state's constitution, the highest law of the state. Mr. Herring is a fraud and if he is not immediately impeached and removed from office, then the state legislature will be neglgent in their duty.

If Mr. Herring wants the execrable US Attorney General Eric Holder for a boss, then Mr. Herring should have applied for a position in the Federal DoJ.

Hopefully, these other attorneys-general who think that their opinions count for more than the constitutions of their states to the point of breaking their Oaths of Office will also be quickly impeached and removed.
31 weeks ago
31 weeks ago Link To Comment
The US Constitution says nothing about marriage, so the Federal government has no say, it is left to the States to decide. Every federal judge that rules otherwise is legislating which is strictly unconstitutional.
31 weeks ago
31 weeks ago Link To Comment
That really isn't true. First of all, you have Federal territory. Then you have countless Federal laws where marital status applies, and it needs to be defined. Not to mention whether to recognize foreign marriages. Plus TomDPerkins' example.
30 weeks ago
30 weeks ago Link To Comment
Except the Constitution contains a clause which demands every state respect the legal instruments of the other states, which means as soon as one state says people are married, they all have to agree with respect to those people. There is a real constitutional entanglement here, one best addressed by an amendment specifying as originally intended, that that clause only apply to criminal penalties after a conviction--the original intent was to prevent people from going to another state to avoid law enforcement. Trouble is, that's not how the words they passed read in plain language, then or now.
31 weeks ago
31 weeks ago Link To Comment
Join the effort to stop this usurping of power not granted in the Constitution.

http://articlevprojecttorestoreliberty.com/take-action.html
31 weeks ago
31 weeks ago Link To Comment
I wonder if social conservatives are not on the wrong side of this issue, which should be a no brainer. I can understand religious constraints and fear of hellfire, but I don't get the sharp lines drawn between definitions of heterosexuality and homosexuality. See http://clarespark.com/2013/03/27/power-in-gay-andor-heterosexual-attachments/.
31 weeks ago
31 weeks ago Link To Comment
You always know whom the mother is (well, almost always). Once you know whom the father is, you have civilization. (That is why my ancestors kept such meticulous records; see the first several chapters of Chronicles.) That is why many advanced cultures have allowed polygamy, but not many have allowed polyandry.

Marriage is a legal means of defending this, of preserving the connection between the father and the offspring. Human emotions such as love should not be relevant to the law.
30 weeks ago
30 weeks ago Link To Comment
As if all "social conservatives" (whatever you meant be that) is some monolithic voting block... You're part of the problem...
31 weeks ago
31 weeks ago Link To Comment
It requires a majority of a state's citizens to amend a state's Constitution. It also requires a majority of a state's Legislators, elected by a majority those citizens, to pass a law. The Rule of Laws enacted by the majority of the citizens through their representatives is a bed-rock principle of civil society. It places the sovereign power of the state in its citizens, not its government, ensuring liberty. History shows that without the rule of the majority through law, we get civil war.

But Liberals believe themselves morally superior and more intelligent than the majority of their fellow citizens. Thus, even when Liberals lack enough votes in the Legislature, they use the power of the Executive and Judicial branches to obtain laws that are opposed by the majority.

Oh, Liberals get their way. But in so doing they sacrifice the greatest gift given by our Founders. They sacrifice the liberty of the people. They would rather have the power to rule over subjects, than to have the citizens make their own laws.
31 weeks ago
31 weeks ago Link To Comment
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