Thursday, January 23, 2014

Virginia's new Democratic attorney general believes that the Marshall-Newman amendment banning gay marriage is itself unconstitutional

Virginia’s attorney general Mark R. Herring will announce that he believes that Virginia’s Marshall-Newman state constitutional amendment, passed in 2006, banning recognition not only of gay marriage but also gay civil unions, is unconstitutional at the federal level, according to a Washington Post front page story Thursday January 23, 2014, by Robert Barnes, link here.     
 Herring is a Democrat, and defeated Mark Obershain in a close election in 2013 with recounts.
Herring had voted against same-sex marriage as a state senator.  But former attorney general Ken Cuccinelli II has been vociferous in his opposition and defended the amendment as attorney general, which he says an AG is required to do.
Even if Herring believes that Virginia’s legal setup blocking gay marriage is unconstitutional, he will have to appoint someone to defend the ban.

Again, I still see arguments that legal marriage of opposite-sex marriage only “sends a message” that procreative sex within marriage is important (as is child rearing).  True, but when a law “sends a message” there are always going to be people disproportionately affected, which can include people who don’t even try to marry at all.  You cannot “prefer” something in public policy without hurting some people who don’t participate in what is preferred.  

Visitors may note Rick Sincere's recent post remembering that nine years ago, Virginia's own supreme court overturned its cohabitation law here.

Note: Subsequent reports indicate that Herring will not even appoint anyone else to defend the marriage ban.  He says an attorney general does not have to defend a law that he or she believes to be unconstitutional. The GOP is flailing on this one. 

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