When Virginia Attorney General Mark Herring recently abandoned his state’s marriage amendment in court and instead joined its opponents, he grandly declared that his actions put the state “on the right side of the law and the right side of history.” His comments were mostly vapid, if not insulting to the 57% of Virginians voters who passed the amendment, but do his actions have legal merit?
On March 14, the Heritage Foundation sponsored an event entitled “Dereliction of Duty: State Attorneys General Failing to Defend Marriage Laws in Court.” Ken Cuccinelli, Herring’s predecessor as Virginia AG, lamented the decisions of several attorneys general not to defend laws preserving the traditional definition of marriage. Over decades of legal practice by Democrats and Republicans, attorneys general could only refuse to defend laws that were “blatantly unconstitutional.” This rigorous standard has been weakened in recent years as several top legal officials in the states, encouraged by U.S. Attorney General Eric Holder, have substituted personal and political preferences for objective judgments on constitutionality. Cuccinelli’s arguments were endorsed by his fellow speakers, Ed Whelan of the Ethics and Public Policy Center and Carrie Severino of the Judicial Crisis Network. All agreed that the refusal of AGs to defend state marriage laws violates the fundamental ethics of the legal profession.
To watch the Heritage panel, go to http://www.heritage.org/events/2014/03/dereliction-of-duty.