State Lawmakers Order Attorney General to Uphold Virginia's Gay Marriage Ban

Virginia Attorney General Mark Herring and Gov. Terry McAuliffe, both Democrats, are not fans of their state’s ban on gay marriage.

However, the ban was ratified by voters in 2006 after the Virginia General Assembly approved a constitutional amendment the year before defining marriage as only legal between one man and one woman.

Herring said last year he would not defend the amendment in court.

Now, Virginia Republicans want to force Herring and McAuliffe to set their personal opinions aside and do the jobs voters gave them.

The Virginia House of Delegates approved HB 1573 on Feb. 10 to force Herring to defend the state’s constitutional amendment on marriage if it is challenged in court.

The summary of the legislation explains it “provides that the Attorney General or his designee has the duty to represent the interests of the Commonwealth or any political subdivision thereof in any proceeding in federal court or a Virginia appellate court in which the constitutionality or validity of a provision of the Constitution of Virginia or of any law or regulation of the Commonwealth is contested or at issue, except in cases where it would be improper due to a conflict of interests.”

Democrats fought back, but didn’t have the votes to counter the GOP move.

"It's not up to us to micromanage the attorney general," said Del. Scott Surovell (D) during the debate, the Virginian-Pilot reported. "If the voters don't like Attorney General Herring's job performance, they'll have their chance to express their opinion about it in a few years."

Del. Brenda L. Pogge (R), the sponsor of the legislation that would force Herring to do his job, as she and her fellow Republicans interpret the Virginia constitution, said she was not taking a political stand.

Rather, Pogge said she wanted to ensure Virginia would have legal representation in the future.

"It wasn't the issue of gay marriage so much as the [principle] that we had an attorney general who had sworn to uphold the constitution of Virginia and was AWOL on our first challenge,” Pogge told the Washington Times.

To Herring, this is about gay marriage and a debate from which he has never shied away.

Herring has always made it clear he would not represent the state of Virginia if its ban on gay marriage was deemed to be unconstitutional. He said it again one month before a federal judge ruled in February 2014 the ban violated the U.S. Constitution.

That decision was upheld by the 4th U.S. Circuit Court of Appeals. A spokesman for Herring said it confirmed the attorney general’s belief that the Virginia gay marriage ban was unconstitutional.

“The Constitution does not permit states’ laws to mark committed relationships between same-sex couples as deficient and inferior,” Herring told reporters following a hearing before the circuit court.

“As we have said repeatedly throughout this case, the issue is not the right to gay marriage or the right to straight marriage, it is just the right to marriage and all the responsibilities that come with it,” Herring also said.

According to a Virginia Attorney General’s Office spokesman, Herring was the first state attorney general to successfully argue in court at the district and appellate levels that a state marriage ban is unconstitutional, and the first who supported marriage equality to petition the Supreme Court for review.

“It is time to discard these discriminatory bans and to recognize the humanity, dignity, and rights of gay and lesbian Americans seeking to forge life-long bonds,” Herring said in August 2014 when he filed a petition for a writ of certiorari in the U.S. Supreme Court.

He asked for a review of the district and appeals court decisions striking down Virginia's same-sex marriage ban as unconstitutional.

The U.S. Supreme Court declined to hear an appeal of federal rulings against gay marriage bans in Virginia and four other states in October 2014.

The Virginia House of Delegates’ bill to force Herring to defend Virginia’s gay marriage ban has yet to see action in the state Senate. However, Senate and House committees rejected Democrats’ efforts to repeal the gay marriage ban legislatively in January 2015.

Gov. McAuliffe has not said how he will react to the legislation forcing Herring to defend the state’s gay marriage ban. However, McAuliffe has never been a fan of the Marshall-Newman Amendment, also referred to as the Virginia Marriage Amendment.

McAuliffe applauded the U.S. Supreme Court’s denial of a writ of certiorari in the case that overturned Virginia’s ban on gay marriages and Herring’s “important victory.”

“Going forward we will act quickly to continue to bring all of our policies and practices into compliance so that we can give marriages between same-sex partners the full faith and credit they deserve,” McAuliffe said in a statement.

“Equality for all men and women regardless of their race, color, creed or sexual orientation is intrinsic to the values that make us Virginians, and now it is officially inscribed in our laws as well,” he added.

Virginia voters were against the idea of gay marriage in 2006. Fifty-seven percent of them supported the Virginia General Assembly’s definition of marriage as spelled out in the constitutional amendment.

But now McAuliffe and Herring have the voters on their side.

A Quinnipiac University poll released in 2014 showed while 42 percent are still opposed, more than 50 percent of voters said they were okay with the idea of gay marriage being legally recognized in the state of Virginia.