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On Gay Marriage, People's Lawyer Reneges On Oath, Defies The People

A version on this originally ran in The Virginian-Pilot on Jan 26, 2014.

I don't usually tell people how I vote, but I've mentioned this before, and it's worth repeating today: In 2006, I voted against Virginia's marriage amendment.

Not because I was an enthusiastic supporter of gay marriage, but because I believed then - and still do - that constitutions should limit the power of government, not place limits on the people.

So are we straight on that? I did not like the amendment that banned gay marriage in Virginia, and I didn't vote for it.

But an overwhelming majority of Virginians - 57 percent - did.

Some recent polls have shown a shift in attitudes toward gay marriage in the Old Dominion. A majority of Virginians may now support it.

If that's the case, there's a way to fix this: Repeal the marriage amendment. I'd be in favor of that. In fact, there are several bills before the General Assembly to start that process.

What I don't favor is Virginia Attorney General Mark Herring substituting his questionable legal judgment for the will of the people, not to mention breaking his 2-week-old promise to support and defend the commonwealth's constitution.

Herring may be legally allowed to side with plaintiffs in cases challenging Virginia's constitutional amendment, as he announced he would do last week. But he shouldn't.

Those who want to legalize gay marriage and believe that any method justifies the end have compared Herring's actions to those of former Attorney General Mary Sue Terry, who refused to defend Virginia Military Institute's single-sex rule.

Nonsense. Last time I checked, there was a big difference between a state college admissions policy and a constitutional amendment passed by two sessions of the General Assembly and ratified by the people.

In his breathless quest to become attorney general, Herring may not have paused to consider his job description. Simply put, he's the lawyer for the people. He has an ethical obligation to defend constitutional measures that the people of Virginia passed.

It's worth noting that when it was politically popular to do so, Herring voted for the marriage amendment. Now he says he's had a change of heart.

Frankly, this looks more like a poll-driven opportunist at work, someone who is perhaps trying to jump-start his bid to become the Democratic candidate for governor in 2017 and elbow Lt. Gov. Ralph Northam out of the way.

Herring's a 52-year-old lawyer, for heaven's sake. If the law is unconstitutional now, it was unconstitutional when he voted for it. What kind of attorney helps implement an unconstitutional measure and then changes his mind eight years later after discussions with his children, as he told an interviewer for NPR this week?

Herring's kids know more about the law than he does? That's worrisome.

Beyond naked political pandering, there's another term for Herring's actions: bait and switch.

If he felt strongly that the marriage amendment was unconstitutional during the campaign, why didn't he barnstorm across Virginia promising to side with litigants who were challenging the gay marriage ban?

I think we all know the answer to that.

According to The Pilot's September endorsement of Herring, the candidate told editorial board members that he favored "repeal of the constitutional amendment" but noted that "his job, if he is elected attorney general, would require him to try in good faith to find a basis to defend the amendment's legality, a duty he has pledged to fulfill."

Two promises broken in just two weeks. Herring's off to a splendid start.

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