Attorney General Mark Herring gently points out the obvious in an op-ed published in today’s Richmond Times-Dispatch:
It is completely within the power of the attorney general to refuse to defend in court a law that he has determined to be unconstitutional after an independent, rigorous analysis. This was the position of former Attorney General Ken Cuccinelli, who said “I will not defend what I, in my judgment, deem to be an unconstitutional law.” In fact, just last year, Cuccinelli declined to defend Gov. Bob McDonnell’s Opportunity Educational Institution after he determined it to be unconstitutional. It should be noted that some of the loudest critical voices today were silent then.
This understanding of the attorney general’s role has not been controversial until I applied it to Virginia’s marriage ban. Two of the past three elected attorneys general declined to defend state laws, and conservative jurists such as John Roberts, Robert Bork and Antonin Scalia have affirmed this role of attorneys general. This tells me that critics are not actually opposed to this long-established power of the attorney general, but are in fact opposed to its application to marriage equality.
This perfectly describes the uninformed commenters opining that Herring should be “impeached,” no doubt spurred on in their self-righteous fury by Bob Marshall’s ongoing tantrum (Marshall, of course, knows better). Frustrated activists like recent Loudoun Progress guest author David Dickinson have fallen for it hook, line and sinker. Lacking any evidence with which to dispute the facts presented by AG Herring, and unable or unwilling to “even attempt to refute the legal analysis” that explains why Marshall-Newman is unconstitutional, Dickinson resorts to an “argument” that only Republicans have to follow the law. The fact pattern shows his position to actually be the opposite: That only Republicans are free to follow the law.