WASHINGTON, March 10, 2014 – Newly elected Virginia attorney general Mark R. Herring announced that he will not defend Virginia’s constitutional amendment codifying the definition of marriage as between one man and one woman. Furthermore, he says he will actively work to defeat the law he is sworn to uphold.
Herring says he is justified based on a recent US Supreme Court ruling but that claim is false.
“I have now concluded that Virginia’s ban on marriage between same sex couples violates the Fourteenth Amendment of the U.S. Constitution,” said Herring according to the Washington Post.
Neither the US Supreme Court nor the Fourth Circuit Court of Appeals that has jurisdiction over Virginia has ruled on the constitutionality of Virginia’s marriage amendment, so there is no legal basis for Herring’s assertion.
By these actions, Herring has effectively renounced his sworn oath of office to defend the Constitution. Furthermore, Herring has intentionally committed malpractice in defending his client—the people of the Commonwealth of Virginia—and should be disbarred from practicing law.
Herring is not a judge, yet he proposes that he unilaterally can decide that his state constitution is unconstitutional. Herring is not a legislator, yet he proposes that his office has the power to annul the will of the legislative branch.
Herring is Virginia’s top law enforcement official, yet he proposes to join litigation to overturn the very Constitution he swore to defend.
Herring joins other rogue state attorneys general—Democrats from California, Illinois, Kentucky, Pennsylvania, Nevada, and Oregon—who put their political preferences for homosexual marriage above their oath of office and the constitutional power of the people residing in the legislative and judicial branches of government.
The case of California demonstrates the looming threat to democratic government. Simply by refusing to defend a law duly enacted by the people, the state government disenfranchised seven million, 52 percent, of California voters.
Referendum supporters took on the duty of defending their California constitutional amendment all way to the US Supreme Court. But, the court dismissed the case in Hollingsworth v. Perry ruling only the state (of California) had standing (the legal vested interest) to defend its own laws.
In the majority opinion, Chief Justice John Roberts wrote, “We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. . . . We decline to do so for the first time here.”
No, the court did not declare a constitutional right to gay marriage. The court only said that California citizens who voted to keep marriage defined as one man and one women in 2008 did not have the legal right to defend the law in the federal courts if the state would not.
In essence, the democrat California attorney general conspired with two gay plaintiffs to trump the vote of seven million Californians.
The implications of lawless attorneys general and this ruling are far reaching: Any ballot measure passed by state voters can be rendered moot simply by an attorney general announcing that the state will not defend the law in court. This encourages a private party to sue knowing they will overturn the law by default. About half the states allow for citizen referendums.
Most disturbing is that President Obama and US Attorney General Eric Holder are participating in and cheerleading this legal anarchy.
Congress overwhelming passed and President Bill Clinton signed the Defense of Marriage Act in 1996. US Attorney General Eric Holder sent a letter to Congressional leadership in 2011. He wrote, “the President of the United States has made the determination that Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, i as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment.”
The judiciary, not the executive branch, determines the constitutionality of law. Yet, the Obama administration announced it would not defend DOMA because Obama decided it was not constitutional. Constitutional checks and balances be damned.
Now, according to the New York Times, US attorney general Eric Holder says “that state attorneys general are not obligated to defend laws that they believe are discriminatory.” Holder has no legal authority to declare that an AG can appoint himself as judge and jury if it advances so called “gay rights.”
This is extremely dangerous. Since the Department of Justice is responsible for enforcing and defending the law, and SCOTUS says the people have no standing to legally defend a law, it becomes impossible to argue that America remains a nation of laws. Meanwhile, Holder’s DOJ simultaneously argues in court that enumerated rights under the First Amendment do not apply to Christians who practice their faith by resisting financial support for contraception and abortion under HHS mandates.
As San Francisco mayor, now California Lt. Gov. Gavin Newsom, told Proposition 8 advocates during the referendum fight, gay marriage would happen, “whether you like it or not.”
Apparently so–at least with attorneys general that are unfit for office and who are a clear and present danger to the rule of law.
Paul Rondeau is an independent social commentator and president of Synapse Associates, a conservative communication, training, and consulting firm.