Three constitutional law professors have filed a brief backing Attorney General Mark R. Herring’s refusal to defend Virginia’s ban on same-sex marriage.
“An attorney general is not an automaton who must blindly support Virginia’s law, especially when he concludes that it conflicts with the (U.S.) Constitution as the supreme law of the land,” write A.E. Dick Howard and Daniel R. Ortiz of the University of Virginia and Carl Tobias of the University of Richmond.
“Virginia’s citizens elect an attorney general on the expectation that he will exercise his legal judgment in their interest. Attorney General Herring has the authority and the duty to do so here.”
Howard helped draft the rewrite of the state Constitution that Virginia’s voters approved in 1971.
On Feb. 13, U.S. District Judge Arenda Wright Allen ruled that that the state’s ban violates the equal protection clause of the U.S. Constitution. The case is now on appeal before the 4th U.S. Circuit Court of Appeals. A three-judge panel of the appeals court will hear oral arguments May 13.
English professor Timothy Bostic and his partner, Tony C. London, a Navy veteran, filed the suit last year after George Schaefer, clerk of the Circuit Court in Norfolk, denied them a marriage license. A lesbian couple from Chesterfield County, Carol Schall and Mary Townley, signed on as co-plaintiffs.
The defendants in the case are Schaefer and Prince William County Circuit Court Clerk Michele B. McQuigg.
Attorneys defending Virginia’s ban filed their briefs March 28, alleging that by striking down the same-sex marriage ban, Wright Allen usurped authority that the U.S. Supreme Court has reserved for states.
The appellants and parties that have filed briefs in support of their position — the Virginia Catholic Conference and the Center for Constitutional Jurisprudence — argue that Herring has committed a “dereliction of duty” in concluding that he could not defend the state’s ban.
The constitutional law professors — Howard, Ortiz and Tobias — say an attorney general has “a paramount obligation” to defend the Constitution of the United States.
“No lesser document — not even one as important as the Constitution of Virginia — can demand his loyalty over this fundamental American commitment.”