Democrats have a secret plan for legalizing same-sex marriage in Virginia.
Republicans might call it that, believing it an effective way to drive dispirited conservatives to the polls in November. But there’s nothing secret about it. It’s as plain as the legal protocols and precedent on which this potential scheme depends.
Put another way: A Democratic governor and a Democratic attorney general might pursue procedural options that could leave the state’s prohibition on same-sex marriage with virtually no one to defend it.
Mark Obenshain, the Republican candidate for attorney general, vows to fight for Virginia’s ban. His Democratic opponent, Mark Herring, is not saying what he would do, though he drops hints — check his interview with reporter Markus Schmidt in today’s T-D — that he would consider steps to scuttle the law.
In July, barely a month after the U.S. Supreme Court issued two major rulings bolstering same-sex marriage, a gay couple filed a lawsuit in Norfolk federal court, challenging the 2006 amendment to the state constitution that defines marriage as only between a man and a woman.
The couple — a university professor and real estate agent in a committed, long-term relationship — want the court to order Norfolk’s circuit court clerk to issue them a marriage license.
The defendants include Gov. Bob McDonnell and Attorney General Ken Cuccinelli, the Republican nominee for governor. A judge released both after they argued they have no direct responsibility for dispensing marriage licenses. McDonnell also was a defendant — Cuccinelli was not — in a similar lawsuit in Harrisonburg. It was filed by the American Civil Liberties Union on behalf of a lesbian couple in Winchester with an infant daughter.
That the governor and the attorney general were named in the actions is more than a formality. It is designed to provoke, if only symbolically, an immediate response by the highest-ranking state official responsible for enforcing the disputed constitutional amendment and the highest-ranking state official responsible for defending it.
Ultimately, whether the governor and the attorney general are formal parties to these lawsuits does not mean a great deal. The bigger deal is whether the governor and the attorney general are prepared to defend language in the state constitution that allegedly violates the federal constitution.
A Gov. Terry McAuliffe and an Attorney General Mark Herring may decide not to. As Democrats, they are on record against the same-sex marriage ban. As high-level state officials and lawyers, they would have a duty not simply to defend the law, but to determine whether the law is defensible. Witness Cuccinelli: He recently refused to defend McDonnell’s school-takeover law, concluding it was unconstitutional.
Doing nothing in the same-sex marriage cases, perhaps anticipating a friendly ruling for the gay plaintiffs, would not be unprecedented.
In 2002, Attorney General Jerry Kilgore, a Republican, chose not to defend in Lynchburg federal court a provision in the state constitution prohibiting churches from incorporating. It was Kilgore’s view that the restriction, challenged by television pastor Jerry Falwell, indeed, violated the federal constitution.
The trial judge, Norman Moon, agreed. He declared the language unconstitutional; specifically, that it violated Falwell’s First Amendment right to the free exercise of religion. In his ruling, Moon several times noted the commonwealth’s refusal to defend the disputed provision.
There was little public pushback to Kilgore’s maneuver. That is unlikely if a Democratic administration were to punt on same-sex marriage.
Republican legislators, particularly those who pushed for the constitutional amendment, would probably demand action. If the attorney general is not willing to do his job, they would argue, then someone else should. Maybe legislators could step in, with their lawyers paid for by the General Assembly that approved the ban?
Whether legislators could intervene is not clear, legal experts say. They would have to convince a federal judge — or two — that there is a legitimate basis for entering the suits; that a public that overwhelmingly approved the ban (but is retreating in its support, according to some polls) is ill-served without a voice in court.
The shorthand for this is “standing,” whether an individual or interest could be harmed unless it is allowed to initiate or participate in a lawsuit in which it ordinarily would not be a party. Were the legislature unsuccessful in joining the case, at a minimum, it could submit an advisory document to the court outlining reasons for affirming Virginia’s current definition of marriage.
In the California same-sex marriage case decided by the U.S. Supreme Court, advocates of the voter-approved prohibition on same-sex marriage that a federal judge had overturned as unconstitutional intervened to get the case before the appellate courts because state officials refused to do so.
In Virginia, other legal options would be shaped by other political scenarios.
That would include a split decision on Election Day: Democrat McAuliffe is picked for governor; Republican Obenshain, for attorney general. This could set up a rarity: the governor and the attorney general as adversaries in court. Obenshain would fulfill his promise to defend the constitutional amendment. But, perhaps, McAuliffe would file briefs supporting the gay couples challenging the measure.
Legal experts say state law anticipates such possibilities; that the question would be who would pay for the governor to go his own way. The experts say there is nothing to prevent him from underwriting such action with personal or political funds.
And McAuliffe has plenty of both.