Delegate Bob Marshall Defends VA’s Same-sex Marriage Ban Despite AG Herring’s Refusal to Defend It

EmilieVonUnwerth
January 23, 2014

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Read More: Bob Marshall, Conservative, Mark Herring, Same-Sex Marriage, Virginia General Assembly

Photo of Del. Marshall (left of Lincoln) via Bob Marshall’s Facebook Page

Delegate Bob Marshall, D-13, is one of the author’s of Virginia’s 2006 voter-approved same-sex marriage ban. Today, newly elected Attorney General Mark Herring stated his office would not defend the Bostic V. Rainey case which challenges the ban. While Republican officials had been silent since news of Herring’s refusal went public this morning, Delegate Bob Marshall did get back to us here at GayRVA and he spoke with us briefly about what Herring’s decision means.

Hi Del. Marshall. I’m Emilie von Unwerth with Gay RVA. I was hoping to ask you your opinion as to AG Herring’s stance on same sex marriage.

“[Herring] swore to uphold the constitution. Instead, he is deciding to attack the constitution that the voters approved, the marriage amendment. He clearly has no authority to do this at all… Professional ethics for lawyers require him to research things thoroughly in any defense of his clients – that means the people of Virginia – and he clearly didn’t do it because the Supreme Court rejected his conclusion outright. They’ve not finally decided on this so-called same sex marriage stuff, but, when Utah, when their law was struck down at the federal district court level, their AG general appealed to the court for a “stay of [inaudible],” meaning they couldn’t enforce the requirement to let two men get married, whatever that reads.

The Utah AG prevailed, now had the Utah AG, in limiting marriage licenses to a man or a woman, been barking up the wrong Constitutional tree, the Supreme Court would not issued that, so it’s not as clear as Mark Herring claims it is. And more over, under the laws of Virginia, he’s supposed to appoint another counsel to defend the law and he won’t. This is worse than that, because this is a constitutional amendment, this is higher than a law, because the people appointed that, not just the legislators. And if he doesn’t do it then the governor has to do it. So that’s where this stands, and I’m not going to take this lying down. I was just talking to some of the other members and I’m drafting a budget amendment to compel him to do this, or to authorize the Speaker to appoint somebody.

GAYRVA: The uproar is saying that AG Herring isn’t doing his job. Do you know if there are any previous cases or a history of AGs being able to use their own moral compasses to decide the outcome of a case?

“The only thing they’ve done… Like, Cuccinelli said ‘I can’t defend this case,’ but he appointed someone else. The law allows that to happen. For whatever reason the AG doesn’t want to do it, either the lawyers in his office lack the skill, or he personally disagrees with the outcome, if he has a conflict, the statute requires him to appoint competent substitute counsel. Not only as Herring not done that, he is aggressively going after this and attacking the constitution he said he would defend. So what good is his word? Not very much.

I listened to his answers in the press conference today, and his defense to that is that he believed the constitution was violating the US constitution.

He supported this constitutional amendment in 2006. He… supported it; he put it on the ballot. And Tim Kaine, who was the governor then, signed the law to place it on the ballot, so did Tim Kaine knowingly violate the US constitution when he put that on the ballot? Herring is indicting everybody but himself.

Do you think that his view could have just changed? Is that a viable option?

No. It’s a political switch. He wanted to get elected, and he thought he could do it, and he did. But the only real test of this – is the constitutional amendment, which passed by 57 – 58 percent. If they had used different wording, which I originally proposed, it was very clear that it didn’t affect any other rights that resided in people regardless of what their personal behavior was…

Well, Del. Marshall, is there anything else you would like to say about Herring’s move that I have forgotten to ask?

Are you doing this for a news thing or what?

I’m basically writing an op ed because I am interested in whether or not AG Herring is doing his job.

My contention is he’s not. The statute of Virginia requires him to do things, and he hasn’t done them. And he came out, not with a legal treatise well explained, but with a press release. You don’t run the government by press releases. Well, I guess he does, Obama does, McAuliffe may, but that’s not really governance.

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