GOLDMAN: Why Herring’s unprecedented gay marriage move makes him the new Cuccinelli

Posted at 7:35 AM, Jan 23, 2014
and last updated 2014-01-23 12:16:52-05
Paul Goldman is a local lawyer who helped run Doug Wilder's historic campaign for governor of Virginia.

Paul Goldman is a local lawyer who helped run Doug Wilder’s historic campaign for governor of Virginia.

RICHMOND, Va. – Has Mark Herring, despite campaign promises, decided to be a new Ken Cuccinelli?

Democrat Herring bashed Republican Cuccinelli for overstepping his authority, and using the AG’s power to impose Cuccinelli’s values on everyone.

But has Mr. Herring now shown us his inner Cuccinelli albeit in the opposite policy direction?

Our new Attorney General joined today with two couples – one from Chesterfield – in asking a Norfolk federal court to overturn Virginia’s ban on same-sex marriages. The rookie AG’s position is contained in a “friend of the court” brief pushing the court to make that decision.

Mr. Herring’s actions raise this question: Can the AG undertake such legal advocacy?

My conclusion

Herring same sex marriageHerring misreads the AG’s role as set-forth by the State Constitution and state law.

He may be personally, indeed passionately, against the constitutional ban on same sex marriage. He may have a reasonable, even correct, constitutional analysis.

But the fact he supports same-sex marriage doesn’t make his overreach right. He is making a Cuccinelli-type mistake.

Mr. Herring and his aides aren’t entitled to create the AG’s office in their own image.

Virginia’s Constitution is clear on the attorney general’s legal role. The pertinent parts contained in Article V read as follows:

Section 15. Attorney General.

An Attorney General … shall perform such duties and receive such compensation as may be prescribed by law, which compensation shall neither be increased nor diminished during the period for which he shall have been elected. (Emphasis added)

That’s right. Contrary to popular opinion, the AG has no real power except as granted by the state legislature.

What duties have been “prescribed by law” for Attorney General Herring?

These responsibilities are basically found in Virginia Code Section 2.2- 500 et. seq.

The AG’s courtroom role in defending state law is prescribed therein. He has the right to refuse to defend a law provided he takes appropriate steps to insure any General Assembly interest – as representatives for the people – in upholding their handiwork is properly represented in court.

However, Mr. Herring is going further by affirmatively joining the side advocating in court against the constitutional provision in question. He is using state funds to do it. That he uses the “friend of the court” brief approach is no loophole.

As a State Senator in 2006, he opposed same-sex marriages. He changed and supported same-sex marriages last year.


Like it or not, the job is different. His rights and duties are defined by different laws. He may disagree with such laws. But he lacks the power to unilaterally change them.

The good news for him is Virginia Code Section 2.2-500 et. seq prescribes lawful duties allowing Mr. Herring to be pro-active in a legal process fighting marriage discrimination if he so chooses. He and his team are smart folks. They are being well paid. Surely they can read the law.

Cuccinelli overreached from the right: the same rules apply when Herring overreaches from the left.

Paul Goldman is in no way affiliated with WTVR. His comments are his own, and do not reflect the views of WTVR or any related entity. Neither WTVR nor any of its employees or agents participated in any way with the preparation of Mr. Goldman’s comments.