If the attorney general won’t defend a law the legislature passes, what are you going to do?
If you’re conservative House Republicans, angry that the Democratic Attorney General Mark R. Herring won’t defend the state’s ban on same-sex marriage, you pass a law giving the legislature the right to represent the commonwealth.
And if you’re the Democrats in charge of the Virginia Senate Committee on Rules, you kill the bill.
That’s what happened Friday when House Bill 706, sponsored by Del. C. Todd Gilbert, R-Shenandoah, came before the Democratic-dominated panel, which voted 12-4 to pass the bill by indefinitely.
Gilbert’s bill would have given legal standing to the “General Assembly, the House of Delegates, the Senate of Virginia, or a member of the General Assembly ... to represent the interests of the commonwealth” in such a proceeding.
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Herring drew fire earlier this year when he declined to defend the ban and instead provided support to the plaintiffs in Bostic v. Rainey, the challenge to Virginia’s same-sex marriage ban heard in federal court in Norfolk, saying Virginia needed to be on the “right side” of the law. The judge ruled that Virginia’s ban is unconstitutional.
Not defending a law is nothing new for a Virginia attorney general. Last year, then-Attorney General Ken Cuccinelli declined to defend the newly enacted Opportunity Educational Institution, saying it was unconstitutional. Then-Gov. Bob McDonnell had backed the division to take over failing schools.
