Monday, January 27, 2014
Virginia Attorney General Herring's Disappointing Decision to Attack Virginia's Constitutional Provision on Marriage
I was disappointed but not terribly surprised by last week’s news that Virginia Attorney General Mark Herring would reverse the Commonwealth’s litigation position in Bostic v. Rainey and attack in federal court the Virginia Constitution’s limitation of marriage to one man and one woman.
Among other things, the move reinforces the notion that law and politics are indistinct. Before the election, Virginia’s Attorney General defended the Virginia Constitution; now after the election, Virginia is attacking the Virginia Constitution. Nothing in the applicable constitutional law has changed since the election. One might argue, I suppose, that elections have consequences. But is this the kind of consequence that last November’s election should have? After all, Candidate Herring refused to say what Attorney General Herring would do on this issue if elected. It is hard to avoid thinking that Candidate Herring was less than candid.
Some helpful resources for thinking about the duty to defend (albeit based on federal law rather than Virginia law) are a Federalist Society podcast on “The Government’s Duty to Defend the Law in Court” (featuring John Baker, Walter Dellinger, John Eastman, and Dean Reuter) and HLS Prof. Dan Meltzer’s Duke Law Review article, “Executive Defense of Congressional Acts.”
Meltzer’s analysis is particularly interesting because it is informed by his executive branch experience as principal deputy counsel to the president in 2009 and 2010 when the question of defending “Don’t Ask, Don’t Tell” was being considered. He sees a value in the regular executive practice of defending statutes against constitutional attack even when the executive has constitutional concerns about a particular statute. And he argues that several features of contemporary constitutional litigation threaten to unravel this practice: “In a world featuring an extremely broad range of views about proper constitutional interpretation, partisan correlates to those views, a powerful temptation to equate what is misguided or immoral with what is unconstitutional, increased polarization of the political parties, and a lack of commitment to the idea of judicial restraint, decisions not to defend or enforce have the capacity to contribute significantly to the unraveling of the executive branch’s practice of defending federal statutes.”