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

Ed Whelan, president of the Ethics and Public Policy Center, said Holder was setting a bad example and “inciting” state attorneys general not to defend laws.

“What better way to signal that this cause [gay marriage] is beyond defense than to bully or invite compliant state attorneys general to throw in the towel?” Whelan said.

Mark Herring, Virginia’s new attorney general, refused to defend the state’s prohibition on same-sex marriage a few days after taking office in January.

“This is really legal ethics 101,” Whelan said. “A lawyer is ethically obligated to represent his client’s legal position zealously in court. Under narrow circumstances a lawyer may withdraw, but a lawyer may never fail to advocate a defensible position that is in the client’s interest simply because [he or she] believes it to be legally incorrect.”

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.”

Cuccinelli criticized Herring for not standing aside when he decided not to defend Virginia’s constitutional ban and statutory prohibition on same-sex marriage, but instead, Cuccinelli argued, Herring chose to “attack” it.

“I’m unaware prior to his act of any attorney general in America ever doing this,” Cuccinelli said. “If he truly believed in the constitutional position he held, his proper course of action is simply to step out of the case. Instead, he switched sides and it’s actually attacking Virginia’s constitutional amendment.”

The amendment banning such unions in Virginia passed in 2006 with the support of 57 percent of the voters. Herring voted for the amendment when he was a state senator.

Cuccinelli said in his four years as Virginia’s attorney general he only failed once not to defend a constitutional provision and that was because he found the law unconstitutional. He decided not to defend a law that allows the state to take control of failing schools, which is still being litigated.

“When they passed [this law] I stood aside for others to defend it because I do not believe it is defensible,” he said.

A federal judge struck down Virginia’s ban on same-sex marriage last month, ruling that the amendment adopted by voters is unconstitutional. The 4th U.S. Circuit Court of Appeals announced last week it will hear appeals to the ruling declaring the ban unconstitutional in May. Gay couples in Virginia still cannot marry until the case is ultimately resolved.