The Washington Post

Reaction is swift and strong to Herring’s challenge to ban on same-sex marriage

Here is a sampling of the reactions to Democratic Attorney General Mark R. Herring’s decision not to defend Virginia’s constitutional ban on gay marriage:

Sen. Timothy M. Kaine (D-Va.), via Twitter: “Thank you @MarkHerringVA for fighting VA’s same-sex marriage ban! I agree — time to bring VA on to the right side of history.”


Same-sex marriage status in the U.S., state-by-state

State Sen. Richard H. Black (R-Loudoun): “I don’t know what the difference between a dictatorship and this is.”

And: “It’s extremely disappointing to me because in state after state, people have voted to define marriage as one man and one woman, and the courts and the gay rights movement have jointly devised this strategy to cut the public out of the process. And what you see is Democrat attorneys general refuse to defend the law and the courts very cynically denying anyone else the right to defend it.”


State Sen. Adam P. Ebbin (D-Alexandria), the first openly gay member of the General Assembly: “Today is a proud day to be a Virginian. We are the birthplace of civil liberties, and it’s exciting to see Virginia getting this right.”

“More and more people know gay people, and more and more people realize the difficulties and heartbreak of not being able to have legal rights,” including to your own children, Ebbin said. “We’re more fair today. And we’re loving. And we’re waking up from history every day.”


State Sen. Thomas A. Garrett Jr. (R-Goochland), a former prosecutor: “I don’t think he should do it, but I think he can do it, and I think it’s probably within his job description to do it” if he thinks the ban conflicts with the U.S. Constitution.

And: “It’s the first time to my knowledge that the attorney general chose not to defend the law, he or she did not appoint outside counsel and is also filing an amicus brief on the side of the defendants. So he’s doing two things that break with precedent; it’s not being done the way it’s normally been done.” But, he added, “elections have consequences.”


House Speaker William J. Howell (R-Stafford): “Less than two weeks ago, Mark Herring took an oath and swore to preserve, protect and defend the Constitution of Virginia. I am very concerned about his announcement today and the dangerous precedent it sets with regard to the rule of law.

“The attorney general has a constitutional and statutory obligation to enforce and defend the duly adopted laws and Constitution of Virginia. This is not an obligation that can be taken lightly. The attorney general’s decision today demonstrates a great deal of disregard for that obligation, as well as the legislative and democratic processes by which those laws are adopted.


Del. David J. Toscano (D-Charlottesville), the top Democrat in Virginia’s House of Delegates: “It’s a great decision,” Toscano said. “After careful consideration, he’s concluded it’s not constitutional and shouldn’t be defended. It’s time to move on with change.”


Sen. Mark D. Obenshain (R-Harrisonburg), who ran against Herring last year: “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.


Theodore B. Olson, plaintiffs’ lead co-counsel in the federal court case at issue: “This is a great day for the Commonwealth of Virginia. Virginia’s marriage laws are needlessly mean-spirited and cause harsh and gratuitous pain and humiliation to gay and lesbian Virginians and their families. Attorney General Herring’s actions have brought Virginia that much closer to the quintessential American ideals of equality under the law and the freedom to pursue happiness. We are grateful for his leadership and look forward to working with him to strike down Virginia’s odious marriage ban.


Adam Umhoefer, executive director, American Foundation for Equal Rights, a sponsor of the federal court case: “The time has come for political leaders of all stripes in Virginia to follow Attorney General Herring’s lead in supporting the freedom to marry for all Virginians,” “The majority of Americans and the majority of Virginians agree that loving, committed couples like our plaintiffs, Mary and Carol and Tim and Tony, deserve the dignity and respect that comes with marriage.”


Victoria Cobb, president, Family Foundation of Virginia: “The decision by the attorney general is not surprising, but it is disappointing and frightening. . . . Whether one agrees with the marriage amendment or not, the idea that over a million Virginia citizens can be left defenseless by the attorney general after legally voting for an amendment that he himself supported is chilling.”


Pat Mullins, chairman of the Republican Party of Virginia: “If Mark Herring doesn’t want to do his job, he should resign.”

And: “For a court to make a determination on an issue with this much gravity, both sides need to be ably represented. Only through a robust and fair adversarial system — where both sides have the resources they need to make the best possible case — can the courts reach a fair decision on this issue. Mark Herring’s decision today not only abandons his first duty, it hobbles this vital legal process. It turns what could have been landmark jurisprudence into a political farce.”

“If Mark Herring doesn’t want to defend this case, he should resign, and let the General Assembly appoint someone who will. Mark Herring owes the people of Virginia no less.”


Brian Coy , spokesman for Gov. Terry McAuliffe (D): “Governor McAuliffe supports the attorney general’s conclusion and his efforts to ensure that all Virginians are treated equally under the law. As this case moves forward, the governor will continue to uphold his responsibility to execute the laws we have on the books.”


State Sen. Charles W. Carrico Sr. (R-Grayson), one of the most conservative members of the Virginia Senate: “I’m pro-marriage between a man and a woman.” But regardless of this, he said, the attorney general simply isn’t doing his job. “I think once Virginians get wind of this, and it starts snowballing, they’re going to wonder why they elected an attorney general who doesn’t want to defend Virginia’s laws.”


Del. C. Todd Gilbert (R-Shenandoah): “Not two weeks ago I watched the attorney general swear an oath before God and the people of Virginia to preserve, protect and defend our Constitution, and it didn’t take him long to find a way out of that.”

He said the attorney general can’t “pick and choose” which parts of the state Constitution to defend. At the same time, he said: “I’m not at all surprised. We thought this was coming.” It’s why he introduced a bill that would allow lawmakers in the General Assembly to defend a law in place of the attorney general, he said.


Del. Robert G. Marshall (R-Prince William), who is seeking legal counsel to determine whether he can take action against Herring under the theory that the attorney general misused funds: “We appropriate money for people to defend the Constitution, not to attack it. This is a complete dereliction of his duty.”


Del. Scott A. Surovell (D-Mount Vernon), dismissing complaints that Herring is disregarding his obligation to uphold the state Constitution: “He also swore an oath to uphold the U.S. Constitution, not just the Virginia Constitution. The U.S. Supreme Court’s decisions are binding on us.”


Del. Alfonso H. Lopez (D-Arlington): “I think it’s wonderful.”

Del. Timothy D. Hugo (R-Fairfax): “It’s the Constitution. Doesn’t he have to uphold the Constitution?”


Claire Guthrie Gastañaga, executive director, American Civil Liberties Union of Virginia: “We welcome the attorney general to the right side of history and we look forward to working with him.”

Gastañaga also dismissed complaints that Herring was not doing his job, noting that then-Attorney General Jerry W. Kilgore (R) agreed with Liberty University on a legal challenge in 2002. And in 1990, then-Attorney General Mary Sue Terry (D) withdrew from defending Virginia Military Institute’s all-male admissions policy in court after then-Gov. L. Douglas Wilder (D) said he thought the policy was unconstitutional.

“This is not a new situation,” Gastañaga said. “It’s one of the tough issues that confronts the attorney general. . . . Sometimes things just don’t deserve to be defended.”


Sen. A. Donald McEachin (D-Henrico): “Any time people step up to do the right thing — especially in public office — that’s a profound thing. He could easily have said, ‘It’s in the courts. I’m just going to duck the tough call.’ ”

McEachin and other Democrats rejected the notion that Herring had overstepped.

“It’s his sworn duty to uphold the Constitution of the United States and that’s what he’s doing, and I’m proud of him for doing it,” McEachin said. “He’s doing his job.”

Laura Vozzella covers Virginia politics for The Washington Post.
Rachel Weiner covers local politics for The Washington Post.

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