Duty to Uphold Laws, So Long as They Are Constitutional

Posted: February 17, 2014 in homosexuality, legal / law
Tags: , , , , , , , , , , , ,

This is an interesting story and an interesting concept/phenomenon. In the US, every state has a State Attorney General (AG). Might be elected, might be appointed … I think the former but I’m too lazy to look it up right now. One of the jobs of the state’s AG is to defend the state’s laws against court challenge. So what happens when the AG thinks the law is inherently unconstitutional?

Well, in the past, regardless of political affiliation, AGs have refused to defend those laws. Usually the fringe that supports the clearly unconstitutional ones yell and scream and demand resignation or impeachment. This happened in late January in Virginia with Attorney General Mark R. Herring. Virginia is one of those states that has a ban on same-sex marriage. It was being challenged in court. AG Herring refused to defend it:

“After thorough legal review, I have now concluded that Virginia’s ban on marriage between same sex couples violates the Fourteenth Amendment of the U.S. Constitution on two grounds: marriage is a fundamental right being denied to some Virginians, and the ban unlawfully discriminates on the basis of both sexual orientation and gender,” Herring said.

WND had three articles on it, the first from the AP, “Virginia AG: ‘Gay’-Marriage Ban ‘Unconstitutional,’” and the second by some unattributed WND writer(s), “Alarming Trend: Attorneys General Refuse to Defend Laws.” The third article came out weeks after the first two, being published on February 7, 2014, “‘Dereliction of Duty’ Charge Leveled Against Virginia AG” (it was written by WND’s anti-homo-in-chief, Bob Unruh).

In the second, WND laments:

Liberty Counsel Chairman Mathew Staver is outraged at Herring’s decision and told WND Virginia’s attorney general doesn’t seem to approach law enforcement much differently than President Obama and U.S. Attorney General Eric Holder.

“This is unfortunately the consequence of elections and you’ve got someone who is lawless. You really trace that back to President Obama and Eric Holder, when they decided to pick and choose, through the Department of Justice, which laws they wanted to defend and which ones they wanted to not just step aside but actually intentionally undermine.
“They did that with the federal Defense of Marriage Act, and now we see on the state level with this new attorney general, he does the same thing,” said Staver.

… Herring is hardly the first official to declare he would not defend traditional marriage laws. In addition to Obama and Holder at the federal level, attorneys general in Pennsylvania and Illinois and the governor of Hawaii all unilaterally declared they would not defend state laws defining marriage as the union of one man and one woman.

But, as the Washington Post points out (and to their credit, WND quotes but then dismisses):

And while Democrats have generated plenty of news when it comes to gay rights, Republicans have also made a point of refusing to argue in court for laws they consider unconstitutional. Indiana Attorney General Greg Zoeller (R) declined to defend a portion of that state’s immigration law after the Supreme Court struck down a similar provision in Arizona’s immigration law. Herring’s predecessor, Attorney General Ken Cuccinelli II, decided last year he would not defend one of Gov. Robert F. McDonnell’s key education reforms on the grounds that he believed legislation allowing the state to take over failing schools did not pass constitutional muster.

… What does this mean going forward? Groups on both sides of key domestic policy fights — including gay marriage, abortion and immigration — are likely to target attorney general races in Colorado, Ohio, Michigan, Illinois, New Mexico and Nevada this year. If they needed any more incentive to get off the fence and become more involved in these campaigns, Herring just gave it to them.

WND’s first clip article got no ratings and 46 comments, the top-rated one by “BobTheConcerned” having 14 up- and 0 down-votes stating, “Homosexual “marriage” equals unholy “marriage.” An abomination.” As I’ve said before, when your only defense of something is a religious one, you’re going to lose legally, in this country, where we do not live in a theocracy.

The second article got 74 votes with 4.95/5 stars (might be a record for ones I’ve seen with that many votes). It also got 143 comments. The top-rated comments are, as I prophesized (spelling on that?) at the beginning of this post, lamenting the AG “not doing their job.”

The third article got 314 ratings (4.83/5 stars) and has 407 comments as of this writing. As is typical these days, the only defense of the law appears to come from religion, which – as I’ve said before – means that we’re going to win because the US is not a theocracy, despite what some of these people would like to think. For example, “17_tparty_patriot76” wrote, “In the bible God says marriage is the union between one man and one woman for the purpose of procreation. Until God says differently, THAT IS THE WORD!!!!! I don’t know who the Pres. thinks he is BUT HE CERTAINLY IS NOT GOD !!!!!!” She (judging by the avatar) got 44 up-votes and none down.

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