By Eric Luther
Capital News Service
RICHMOND — Virginia’s House of Delegates is poised to vote this week on a bill allowing legislators to defend any law the governor and attorney general decide not to uphold on behalf of the state.
House Bill 706, proposed by Delegate C. Todd Gilbert, R- Shenandoah, would permit a member of the General Assembly to represent the “interests of the commonwealth” in circumstances where the constitutionality, legality or application of Virginia’s adopted laws are questioned by the governor or attorney general.
A Gilbert spokesman says the delegate proposed the bill because he was aware of Herring’s “threats” on the campaign trail.
“The attorney general’s decision to refuse to enforce a duly-adopted provision of the Virginia Constitution is frightening,” Gilbert said in a GOP address. “Unfortunately, Attorney General Herring’s decision does not come as a surprise.”
Herring said this past week he believes the commonwealth’s constitutional amendment defining marriage as between one man and one woman violates the 14th Amendment of the United States Constitution. Herring stated in a press release he would side with the plaintiffs in the federal Bostic v. Rainey case and seek to declare Virginia’s gay marriage ban unconstitutional.
“Two weeks ago, I watched Mark Herring swear before God and the people of Virginia to preserve, protect and defend the Constitution of the commonwealth,” said Gilbert in a weekly Republican address. “It didn’t take him long to get out of that.”
Gilbert, whose website describes the delegate as a proud supporter of traditional marriage, says Herring’s decision sets a dangerous precedent and shows disregard for the oath and obligation he took to defend Virginia’s constitution.
“The attorney general does not have the authority to unilaterally make that decision for the people,” Gilbert said.
In contrast, Herring says it is time for the commonwealth to be on the right side of history and the right side of the law, according to a recent news release.
“Marriage is a fundamental right being denied to some Virginians,” Herring stated. “Virginians should no longer face discrimination and economic hardship based on whom they love and commit their lives to.”
Delegate Gregory D. Habeeb, R- Salem, voted this past week in support of HB706.
“The lawyer in me is stunned an attorney general and a governor would take that position,” Habeeb said. “If the attorney general won’t do his job and the governor won’t appoint somebody … someone’s got to step in and do it.”
Gov. Terry McAuliffe’s refusal to defend the amendment is unprecedented and an abdication of his responsibilities, according to Habeeb.
Habeeb says he thinks Herring and McAuliffe’s position is completely inappropriate and in violation of their duties.
“I think it’s very ethically questionable from a lawyer standpoint,” Habeeb said, “and may rise to the level of violation of their oaths of office.”
Under the current Code of Virginia, Herring has a certain category of cases he is supposed to defend, Habeeb said. If Herring chooses, or is unable to fulfill that duty, then the governor needs to appoint someone who can, Habeeb said.
What is not clear in the current law, Habeeb said, is what happens if the attorney general recuses himself, and the governor refuses to appoint council.
“I don’t even care what the issue is,” Habeeb said. “For them to say we have a client. We are refusing to defend that client, and we don’t want anyone else to defend that client … that’s shocking as a lawyer.”
Some faith-based groups have gone as far as calling for Herring’s resignation, while other organizations, such as the American Civil Liberties Union of Virginia, praise Herring’s newfound position.
“We’re pleased to welcome the attorney general and the commonwealth to the right side of history,” stated Claire Guthrie Gastañaga, executive director of the ACLU of Virginia, in a press release. “And we want to be sure that whatever happens next will result in a quick, clear and final decision affirming the freedom to marry for our clients and for all Virginians.”
HB706 passed through the House Courts of Justice Committee this past week with amendments after a 13-7 vote in favor of the bill.