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GOLDMAN: Why Herring’s unprecedented gay marriage move makes him the new Cuccinelli

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CLICK TO READ: Paul Goldman asks if Herring is breaking the law by supporting same-sex marriage?

Paul Goldman is a local lawyer who helped run Doug Wilder's historic campaign for governor of Virginia.

Paul Goldman is a local lawyer who helped run Doug Wilder’s historic campaign for governor of Virginia.

RICHMOND, Va. – Has Mark Herring, despite campaign promises, decided to be a new Ken Cuccinelli?

Democrat Herring bashed Republican Cuccinelli for overstepping his authority, and using the AG’s power to impose Cuccinelli’s values on everyone.

But has Mr. Herring now shown us his inner Cuccinelli albeit in the opposite policy direction?

Our new Attorney General joined today with two couples – one from Chesterfield – in asking a Norfolk federal court to overturn Virginia’s ban on same-sex marriages. The rookie AG’s position is contained in a “friend of the court” brief pushing the court to make that decision.

Mr. Herring’s actions raise this question: Can the AG undertake such legal advocacy?

My conclusion

Herring same sex marriageHerring misreads the AG’s role as set-forth by the State Constitution and state law.

He may be personally, indeed passionately, against the constitutional ban on same sex marriage. He may have a reasonable, even correct, constitutional analysis.

But the fact he supports same-sex marriage doesn’t make his overreach right. He is making a Cuccinelli-type mistake.

Mr. Herring and his aides aren’t entitled to create the AG’s office in their own image.

Virginia’s Constitution is clear on the attorney general’s legal role. The pertinent parts contained in Article V read as follows:

Section 15. Attorney General.

An Attorney General … shall perform such duties and receive such compensation as may be prescribed by law, which compensation shall neither be increased nor diminished during the period for which he shall have been elected. (Emphasis added)

That’s right. Contrary to popular opinion, the AG has no real power except as granted by the state legislature.

What duties have been “prescribed by law” for Attorney General Herring?

These responsibilities are basically found in Virginia Code Section 2.2- 500 et. seq.

The AG’s courtroom role in defending state law is prescribed therein. He has the right to refuse to defend a law provided he takes appropriate steps to insure any General Assembly interest – as representatives for the people – in upholding their handiwork is properly represented in court.

However, Mr. Herring is going further by affirmatively joining the side advocating in court against the constitutional provision in question. He is using state funds to do it. That he uses the “friend of the court” brief approach is no loophole.

As a State Senator in 2006, he opposed same-sex marriages. He changed and supported same-sex marriages last year.


Like it or not, the job is different. His rights and duties are defined by different laws. He may disagree with such laws. But he lacks the power to unilaterally change them.

The good news for him is Virginia Code Section 2.2-500 et. seq prescribes lawful duties allowing Mr. Herring to be pro-active in a legal process fighting marriage discrimination if he so chooses. He and his team are smart folks. They are being well paid. Surely they can read the law.

Cuccinelli overreached from the right: the same rules apply when Herring overreaches from the left.

Paul Goldman is in no way affiliated with WTVR. His comments are his own, and do not reflect the views of WTVR or any related entity. Neither WTVR nor any of its employees or agents participated in any way with the preparation of Mr. Goldman’s comments.


  • Stickler for the Constitution

    Party Comrade Goldman is correct in this article thus proving that even a blind pig gets the odd acorn. However, his fellow traveler, Comrade Herring, again demonstrates the complete disregard for constitutional law in usurping the job of the judicial branch. With the AG now deciding on the constitutionality of our laws, we no longer require the services of a judiciary do we? Comrade Attorney General Herring may not be wrong on the issue but he is certainly an outlaw on the process. He learns this from the way that the Communists do things at the national level.

    • Cau87

      The AG isn’t deciding the constitutionality of it. If he were he would be writing a memo directing counties to ignore the provision.

      He’s just filing a brief in a court case, and the court will decide the constitutionality of the provision.

  • george myers

    The caveat the attorney general applies is one of allegiance to the federal constitution, which he states is the supreme law of the land.
    He believes that the General Assembly and the constitutional amendment approved the people are unconstitutional. If he is true to his oath to defend both constitutions, federal and state, then he cannot defend an illegal state law, not withstanding its origins.
    This is not the same as Ken Cuccinelli, who applied laws retrospectively when it was in the interests of his position and did not when it was not.
    Stickler’s point is a good one. However, it does not take into account the precedent of the Nuremburg trials, which places the onus on the individual to refuse to obey an illegal order or superiors and, by extension, puts the onus on elected officials not to support illegal laws.
    If the state legislature passed a law requiring Christian prayer to be said in schools, and a governor signed into law, I do not believe that the attorney general would be flouting his duty by refusing to defend such a law.
    It is in fact the duty of the attorney general to provide opinions on laws and in this case, Mr. Herring has opined unofficially that the constitutional amendment and the action of the General Assembly do not pass muster with the federal constitution.
    The courts will decide whether he has erred.
    But I cannot see any requirement for an attorney general to knowingly defend a law he believes violates the constitution until such time as the appropriate court or courts say otherwise.
    His duty to his clients is superseded by his oath to support and defend the constitution of the United State and the state of Virginia, and when these are in conflict, to follow the national law which is superior to the state’s (as the Civil War made clear).

  • Dustin Cavanaygh

    14th amendment guarantees equal protection under the law. Until gays who marry have the same rights as non-gays who marry then it is blatantly unconstitutional and no word twisting can change that. Ignorant Christians trolling their beliefs into law under the guise it is good. Idiots.

  • Bill

    This is such an intellectually dishonest pice of writing that any intelligent human being will consider it null and void.

    My advice for Paul Goldman?

    Get thee to a 7th grade civis class. Pronto.

  • issatrue

    Seems the purpose, mission, goal of Democrats is to usurp, circumvent
    and derail laws and enforcement and Constitution by personal preferences, will and power; not prescribed due course. Until the Laws and Constitution are changed, Lawyers, “Law Makers” Courts and enforcement are under oath and obligation to obey, abide, enforce, and honor the current, applicable, Legislation.
    Citing: Illegal Immigration Laws, Illegal Employment Laws, and Tax
    Laws that say it is Illegal to force Taxation to knowingly support that which IS definitely known to be Illegal, under Law.

    • Cau87

      Actually, the Virginia AG may explicitly not enforce a law.

      In this case though, all he’s doing is filing a brief. He’s not nullifying the law, he’s asking a court to.

      And you’re entirely wrong that courts have to obey laws until they are changed – the courts themselves change the laws if they’re unconstitutional.

      • manalishi

        Cau87. Lately courts have defied and perverted the constitutional aspects of their duties based soley on the petulant and whimsical nature of PC activism and or the agenda set forth by traitors. Examples? Why would any one ever consider the nomination of Sonia Sodemeyer and Alana Kagel?

  • Wayne Peterson

    The oath taken by the AG also requires him to uphold the US Constitution which takes supremacy over all state constitutions. Assume Virginia had a state constitutional amendment requiring all citizens be Catholic. Would the AG be required to defend it when it is such a clear violation of the Establishment Clause? According to the Republican Wingnuts, the answer is “yes”!

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