Virginia’s Democratic attorney general made history not only by declining to carry out his duty to defend state marriage law based on personal opinion but by “actually turning on his client” and “attacking” the law, his Republican predecessor told a Heritage Foundation audience.
If Mark Herring had changed his mind about the 2006 marriage amendment he himself voted for as a state lawmaker, Ken Cuccinelli said, then “his proper course of action was simply to step out of the case,” not “switch sides.”
Decades of precedent on the state and federal levels regardless of political party, Cuccinelli argued, calls for attorneys general to defend any given law in their jurisdiction unless it is “blatantly unconstitutional” — not just because “I really, really want it to be unconstitutional.”
Cuccinelli, who narrowly lost the Virginia governor’s race in November, joined two other legal experts at a Heritage event examining what they regard as a disturbing trend: the willingness of state attorneys general to heed U.S. Attorney General Eric Holder’s advice – and example – by refusing for political reasons to enforce or defend laws with which they disagree.
The Friday afternoon event, called “Dereliction of Duty,” also featured Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, and Ed Whelan, president of the Washington, D.C.-based Ethics and Public Policy Center.
>>> To watch the entire event, click here.
“In the past few months we have seen federal judges declare state marriage laws unconstitutional in Ohio, Utah, Oklahoma, Kentucky, Texas, and Virginia,” said moderator Ryan T. Anderson, who as Heritage’s William E. Simon fellow has written and spoken widely on the nation’s marriage debate. “We’ve also seen state attorneys general in Illinois, California, Pennsylvania, Nevada, Oregon, Kentucky, and Virginia refuse to defend their state marriage laws in courts.”
Cuccinelli said his successor, Herring, easily could have designated subordinates in the Virginia Attorney General’s Office to defend the state’s marriage law against a same-sex couple’s court challenge to voters’ affirmation that marriage is a union between a man and a woman.
“This is the ends-justify-the-means rationale,” Cuccinelli said of Herring’s decision to formally join the plaintiffs’ cause against Virginia:
“Within 12 days [of his swearing-in] he was ready to pull what amounts to a political stunt. … What Herring did is indefensible under the law. No one [else] has ever done this. He literally stands alone in history.”
Analyzing the Supreme Court’s limited decisions last year in two marriage cases, Severino argued that attorneys general, judges and other public officials were drawing the wrong conclusions. Those rulings are being used as “an excuse” in the recent wave of overturned marriage laws, she said.
Whelan said it is “Legal Ethics 101” that lawyers are obligated to represent clients zealously – and it was “absurd” for a state attorney general to use the U.S. Constitution as a frivolous excuse not to defend state law. He blamed Holder for “inciting” other attorneys general in a New York Times interview to brand as bigots anyone who views marriage as did nearly everyone, including Herring and President Obama, “until just about yesterday.”
If attorneys general think they have the flexibility to elevate their personal views in a politically correct fashion, Whelan added, we can expect “a deep, deep politicization of the rule of law.”
This story was produced by The Foundry’s news team. Nothing here should be construed as necessarily reflecting the views of The Heritage Foundation.