Mark Herring, Unfit for Office?

Photo from Mark Herring's Facebook Page
Photo from Mark Herring’s Facebook Page

Newly elected Attorney General Mark Herring recently announced that he would work to fight Virginia’s same sex marriage ban.  However, when taking the oath of office, didn’t Herring pledge uphold and defend the Constitution of the United States and the Constitution of Virginia?  If so, someone ought to remind him that in 2006 Virginia voters approved the Marshall-Newman Amendment to the Virginia Constitution which declared:

Only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions. This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.

Certainly Virginians ought to revisit their laws from time to time and decide if past decisions ought to upheld or corrected.  Perhaps it is time for the citizens and legislators to address this issue once more.  However, it is deeply troubling to hear news that the attorney general is more or less abrogating his duty for political reasons.  Wasn’t it Herring’s own campaign who declared “The Kind of Attorney General Mark Herring Will Be As Attorney General, Mark Herring will put the law first, not politics.”  If he proceeds down this path, it is clear that Virginians have been deceived.

In response, Senator Mark Obenshain, who narrowly lost last year’s attorney general race, offered the following statement:

Obenshain Statement on Attorney General Mark Herring’s
Decision to Brief Against Virginia in Marriage Amendment Case
RICHMOND — Today, Senator Mark Obenshain (R-Harrisonburg) issued the following statement about Attorney General Mark Herring’s announcement that his office will not defend Virginia’s Marriage Amendment, and will be filing a brief asking the court to strike down a provision of the state constitution.

“Virginians, like millions of others across the country, are engaged in a robust debate over marriage, one that speaks to an important unresolved constitutional issue. Here in Virginia, the state’s Marriage Amendment is a matter of perennial legislative debate, and that Amendment could well fall: the voters could repeal it or a court may strike it down. But it is emphatically not the role of the Attorney General to make that determination unilaterally, and that may well be the consequence of Attorney General Herring’s decision.

“Fair minded people disagree on the issue of gay marriage, but this is, fundamentally, about the rule of law and allowing the system to work. Whether the Marriage Amendment will survive court scrutiny is clearly an unresolved question, but our system of law does not work when one side of the argument fails to show up. It is manifestly the job of the Attorney General to defend the law and let it rise or fall on it merits in court.”

Attorney General Herring, who on the campaign trail refused to take a clear position on whether he would defend Virginia law in this and other instances, will be filing a brief in support of the plaintiffs, according to spokeswoman Ellen Qualls.

“The Attorney General is the Commonwealth’s lawyer,” said Obenshain. “It is deeply inappropriate for the Attorney General to use state resources to actively oppose a duly ratified constitutional amendment. Through this decision, Herring is effectively seeking to unilaterally reverse the actions of the General Assembly in adopting the Amendment, and the people of Virginia in ratifying it. There are deeply held convictions on both sides of this issue, which is why it is all the more important that the case has its day on court—and that both sides of the dispute are ably and robustly argued.”

In a September interview with the Richmond Times-Dispatch, Herring said that he would “poll the attorneys in the attorney general’s office who have the expertise in the particular subject matter” to help him determine whether or not to defend the Marriage Amendment or other laws in court. At a debate on October 2nd, he pointedly declined to state whether he would defend state laws with which he disagreed.

Obenshain concluded, “I look forward to working with the Attorney General on many important issues for the good of all Virginians, and have no intention of highlighting every possible point of disagreement that may arise throughout Herring’s term in office, but I consider the question of whether or not the Office of the Attorney General is to defend Virginia law a matter of utmost importance, something that goes to the heart of the duties of the Attorney General. This is especially true given Mark Herring’s dissembling comments made over the past six months on the campaign trail.  Virginians should be disappointed that he didn’t display the courage to share his intentions when repeatedly asked during his campaign. Today’s decision sets a disturbing precedent and has the potential to deprive Virginians on both sides of this important issue of the legal scrutiny the matter clearly merits.”

Friends, this issue is about much more than the definition of marriage in Virginia.  One shouldn’t fall into the trap of supporting this action just because he or she happens to support gay marriage.  Should Attorney General Herring attempt to redefine the law outside of the legislative process, should he fail to uphold his oath of office, it seems clear that he is unfit for the position for which he was elected and thus ought to either resign or be removed.

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