In an exclusive comment e-mailed to The Foundry, Ken Cuccinelli, the Republican whom Democrat Mark Herring succeeded as Virginia attorney general, said Herring acted inappropriately in going to federal court to oppose the state marriage amendment.
“The only time it is appropriate for an attorney general not to defend a Virginia law,” Cuccinelli said, “is when he concludes that there is literally no legitimate argument to be made in defense of that law or constitutional provision.”
Here is the full text of Cuccinelli’s comment:
I have always understood that it was the attorney general’s job to defend state laws and the constitution, not to spend taxpayer money attacking them. It is rare enough for an attorney general to encounter a situation where he believes he should not defend some provision of Virginia law, but the proper step at that point is to simply stand aside and arrange for a lawyer outside the AG’s office who will defend the law.
Every attorney general has a sworn duty to defend Virginia laws and our constitution, whether he agrees with the law or not. The only time it is appropriate for an attorney general not to defend a Virginia law is when he concludes that there is literally no legitimate argument to be made in defense of that law or constitutional provision. In my four years as attorney general, we only encountered that situation once, and when we did, we did not attack the law; rather, we stood aside for others in state government who thought the law defensible to appoint counsel who would make the case for the law in question.