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Bill would require AG to defend Va. Constitution

January 19, 2015

by Ashley Jordan,
Capital News Service

A Republican legislator from Williamsburg is pushing for a law to require the state attorney general to defend the Virginia Constitution – which the current officeholder, Democrat Mark Herring, declined to do regarding the commonwealth’s ban on same-sex marriage.

House Bill 1573, which was proposed last week by Del. Brenda Pogge, would add this passage to state law:

“Except in cases where it would be improper for the Attorney General’s office to render legal services due to a conflict of interests, the Attorney General has the duty to represent the interests of the Commonwealth in any proceeding 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.”

The bill is in response to Herring’s decision last January not to contest a lawsuit challenging the state’s ban on same-sex marriage.

In 2006, Virginia voters approved a constitutional amendment stating that the commonwealth would legally recognize only marriages between one man and one woman.

After a same-sex couple challenged the amendment in federal court, Herring announced he would not defend the law on the grounds that the ban violated the 14th Amendment of the U.S. Constitution. The couple won their lawsuit in U.S. District Court and before the 4th U.S. Court of Appeals. Last October, the U.S. Supreme Court refused to hear the case, called Bostic v. Rainey. Same-sex marriage has been legal in Virginia ever since.

Conservatives condemned Herring’s decision to support the plaintiffs instead of defending the state’s position in that case. Some called for Herring’s resignation, and others wanted him impeached.

Pogge said this week that she believed voters were disappointment that Herring did not “perform his duty.”

HB 1573 was inspired by last year’s events but is not aimed at same-sex marriage, Pogge said. Instead, it aims to clarify the duty of the attorney general – who is elected to be the state’s legal representative.

“It’s not about gay marriage. I think that issue is over,” Pogge said. “This is going forward. If there are any challenges to the Virginia Code or Constitution, the people of Virginia have hired an attorney to defend our position. The bill primarily is codifying what his duties are.”

Herring, who was elected in 2013 and took office last January, has not publicly addressed Pogge’s bill. However, the website of the attorney general’s office addresses the case that struck down the gay marriage ban. It also addresses the duties of the attorney general.

The website states that as the attorney general, Herring has a duty to protect the U.S. Constitution and the Constitution of Virginia. However, when a state law or the state Constitution conflicts with the federal
Constitution, the federal Constitution prevails as the law of the land, the website says.

Herring has cited that principle as his rationale for changing Virginia’s legal position in Bostic v. Rainey.

Many conservatives were outraged by Herring’s action. Last spring, Del. Bob Marshall, R-Prince William, filed an inquiry into whether the attorney general’s actions warranted impeachment.

In a May press release, Marshall, who sponsored the 2006 amendment banning same-sex marriage, said the attorney general “rejected the sovereign will of the people of Virginia as expressed by their approval of an Amendment to the Constitution.”

Although Republicans control the General Assembly, Pogge’s bill might have a difficult time becoming law, according to Geoffrey Skelley, a political analyst and associate editor of Sabato’s Crystal Ball, a newsletter about Virginia politics. Even if the bill gets passed by the House of Delegates and Virginia Senate, Democratic Gov. Terry McAuliffe could veto it.