A spokesman for McAuliffe, a longtime supporter of gay marriage, said the governor supports Herring’s move. But the usually voluble governor has been noticeably quiet on the matter.
In his letter to Marshall, McAuliffe noted that other officials outside of the attorney general’s office are fighting the ban.
“I share your view that the effective administration of our legal system requires zealous advocacy on all matters before the courts. In the present case, Virginia’s same-sex marriage ban is being vigorously and appropriately defended by the Clerk of Court for the City of Norfolk and the Clerk of Court for Prince William County,” as well as other parties, McAuliffe wrote. “Accordingly, I respectfully decline to appoint special counsel in this matter.”
Republican delegates have been quick to draw contrasts with McAuliffe on politics and policy even as he is still settling into the governor’s mansion, including his firing and appointment of members of the state’s powerful Alcoholic Beverage Control board and his goal to expand Medicaid.
On the gay marriage issue, the exact timing and nature of their next move remain unclear. A sharply divided House committee passed a measure that would give each member of the General Assembly the right to “intervene” in a case when the governor and attorney general decline to defend a Virginia law.
Supporters of that bill said they rushed it through the Courts of Justice Committee so they would have time to join legal proceedings in an ongoing federal gay marriage case. A judge is scheduled to hear oral arguments in that case in Norfolk on Thursday.
It was that case that prompted Herring last week to announce that Virginia would no longer defend the state’s constitutional amendment banning gay marriage. The attorney general also filed a motion in the case in which he sided with the plaintiffs — two gay couples.
Although Herring has come under intense criticism from conservatives for his actions, he has cited his duty not to defend a law that he found to be in violation of the U.S. Constitution. He determined that marriage is a civil right not reserved for heterosexual couples. While he vowed to defend the Virginia constitution, Herring said, the U.S. Constitution is the final word.
Marshall said he plans to continue to hold Herring to account for his first major decision as attorney general. Marshall said he is developing a legal ethics complaint against Herring on the premise that the attorney general has failed to properly represent his clients: the people of Virginia, the majority of whom voted for the marriage ban.