Dozens of Republican lawmakers signed a letter Friday calling on Gov. Terry McAuliffe to provide legal counsel to defend Virginia’s constitutional amendment banning same-sex marriage.
“Our attorney just quit on us,” said C. Todd Gilbert (R-Shenandoah), one of 32 delegates who signed the letter. “I guess we need someone to stand up for us in court.”
The move put new pressure on McAuliffe (D) to involve himself with Attorney General Mark R. Herring’s decision Thursday to bow out of defending the ban. Herring’s decision was applauded in some quarters as a historic stand for civil liberties, and by others as a devious end run around the will of Virginia legislators and voters.
Although McAuliffe was an outspoken supporter of same-sex marriage during the campaign, a spokesman on Friday stuck with the hands-off posture the governor took when Herring (D) announced his plans, saying the governor had been out of the office all day and may not have seen the lawmakers’ request.
“When he gets his hands on the letter, he’ll obviously read it and consider it” in consultation with his attorneys, spokesman Brian Coy said. While McAuliffe “certainly hopes the attorney general is successful,” Coy said, the governor “will continue to uphold his responsibility to execute the laws we have on the books.”
All but one of the delegates signing the letter were Republican, including House Majority Leader M. Kirkland Cox (R-Colonial Heights), Timothy D. Hugo (R-Fairfax) and David B. Albo (R-Fairfax). The Democrat was Johnny S. Joannou of Portsmouth. Del. Robert G. Marshall (R-Prince William) drafted the letter, circulated it and delivered it to the governor’s staff Friday.
The House GOP took a separate step Friday to fight the decision by Herring not to defend the marriage ban. Over strenuous objections by Democrats, Republicans on the House Courts of Justice Committee approved a bill giving the General Assembly the right to intervene and hire counsel when the governor or attorney general declines to defend Virginia law.
Herring’s announcement Thursday, in which he pledged to put Virginia on the “right side of history,” changed the state’s official position on a constitutional amendment passed just eight years ago with the support of 57 percent of voters. In Virginia and across the nation, public opinion has changed swiftly in the intervening years. Herring himself voted for the amendment when he was a state senator, but he has said repeatedly since then that his views have changed.
Herring’s action carries immediate implications for a federal court case scheduled for oral arguments in Norfolk next week. The attorney general submitted a motion in the case Thursday siding with the plaintiffs, two gay couples who are seeking to overturn the ban.
Marshall, a stalwart conservative known for incendiary rhetoric, said in an interview on WAMU’s “The Kojo Nnamdi Show” on Friday that Herring’s decision was comparable to the attack on Pearl Harbor.
In an interview with The Post, Marshall also took exception to Herring’s reference to Loving v. Virginia, the 1967 U.S. Supreme Court case that struck down the state’s laws against interracial marriage. Herring said that Virginia had been on the wrong side of history in that case.
Marshall said Herring “has the audacity to make racial allusions that somehow being for man-and-woman marriage makes you some segregationist, which is totally gratuitous on his part and insulting.”
On Thursday, Herring called the Republican proposal to let the legislature defend state laws “unnecessary.” He said, “Virginia has one attorney general, and I think it’s going to stay that way.”
Nonetheless, legislators put the bill on a speedier-than-usual path Friday to the full House of Delegates. The House’s top Democrat, David J. Toscano (D-Charlottesville) called the move “a classic case of nontransparent legislating.”
He said the bill raises serious constitutional and practical questions.
“What we’re going to do with this bill is create 140 little attorney generals,” Toscano said. “It’s a recipe for chaos.”
It is unclear whether the proposal could become law quickly enough for lawmakers to hire counsel for the federal case. It is also unknown whether McAuliffe would sign it.
Albo said his issue is not partisan nor ideological; he also was not pleased when the former attorney general, Ken Cuccinelli II, declined to defend Virginia laws he deemed unconstitutional. “I’m equally as mad at Ken Cuccinelli as I am at Mark Herring,” Albo said. “If someone would have provided me the letter when Ken did it, I would have signed it, too.”
Herring spokesman Michael Kelly said Virginia’s marriage ban will still be defended in court.
“It still has the clerk of Prince William [County] and the clerk of Norfolk, who are ably represented by counsel and will argue for the legality of the ban,” Kelly said. “The case doesn’t stop because of the state’s change of position. The case will continue.”