I know that the American legal culture has shifted so much at this point that defending traditional marriage laws in court amounts to tilting at windmills, but it is still appalling to see that the new Attorney General of Virginia has substituted his own judgment for a majority of Virginia’s voters, who in 2006 approved a state constitutional amendment banning same-sex marriage. Mark Herring said today that he will not defend the state constitution from legal challenge. The state’s chief legal officer has concluded that the ban on gay marriage violates the US Constitution, which frees him from an obligation to defend the state law.
Whether you are for or against gay marriage, it ought to bother you that a state attorney general asserts a right not to defend the state constitution. What if a majority of Virginia voters had approved same-sex marriage, but Mark Herring were a gay-marriage opponent, and refused to defend the law against a court challenge from marriage traditionalists?
A state Attorney General is supposed to defend the laws of the state, whether or not he personally agrees with them. Right? Am I missing something? How is this different in principle from the “signing statements” that US presidents append to bills they sign into law, indicating that they may not enforce the particular law because they believe it to be unconstitutional?