GOLDMAN: Liberal Virginia newspapers same-sex marriage fiasco

Posted at 8:59 AM, Jan 27, 2014
and last updated 2014-01-27 08:59:42-05

RICHMOND, Va. – Apparently desperate to be politically correct and avoid being called anti-gay, Virginia’s two biggest newspapers chose politics over principled journalism.

The Washington Post and Virginian Pilot displayed shockingly shallow reasoning in backing Virginia Attorney General Mark Herring’s unprecedented decision to switch sides in an on-going legal case.

Compare the reasoning provided by the Richmond Times-Dispatch editorial board, leaders in journalistic opposition to the same-sex marriage amendment. Their editorial board likewise agrees 1000 percent with Herring’s opposition to the ban.

But the RTD rightly called him out on jumping sides during an on-going case. It mocks the lawyer-client relationship essential to the law. It raises questions about fairness when the state’s top lawyer can use his prestige and tax-payer funds in such a manner.


The Post and Pilot failed to address Mr. Herring’s seeming obligations under the Rules of Professional Conduct applicable to all lawyers.

These Virginia Supreme Court sanctioned rules prohibit a lawyer from unilaterally taking any action materially adverse to a former client. That at least is the plain reading.

What could be more materially adverse than having your former lawyer use his prestige and taxpayer funding to defeat you?

Moreover, the newspapers took no notice of Mr. Herring’s pledge, reported in the Virginian Pilot editorial [thank you to Kerry Dougherty ] to defend the same-sex constitutional ban if there existed a good faith defense. Candidate Herring said an AG had a statutory obligation in such circumstances.

In 2006, Mr. Herring supported Virginia’s constitutional right to ban same-sex marriage.

In 2012, President Obama supported Virginia’s constitutional right to ban same-sex marriage.

Likewise did Senator Mark Warner, Tim Kaine, and Governor McAuliffe until recently.

Surely they had a good faith legal argument supporting Virginia’s right to ban same-sex marriage.

A 1,000,000 Virginians likewise voted for the ban.


The political forces working to overturn the same-sex marriage ban are perhaps the most powerful in today’s Virginia Democratic Party.

As I wrote last year, Mr. Herring showed political smarts by getting out front on the issue during the Democratic primary. I suggested it might be the key to what turned out to be his very narrow win.

So yes, I get the politics.

But what about ethical rules and campaign promises, don’t they deserve consideration?

A newspaper editorial page must be reserved for honest analyst, not shaped by fears regarding unfair political labeling.

I get it, the Bar rules and campaign pledge proved inconvenient.

Mr. Cuccinelli left Mr. Herring with a bad hand given the same-sex case being set for a hearing right now.

Herring had to make quick choice.

As the Post pointed out, his unprecedented move makes him a leading governor contender in 2017. This can’t be denied by any objective analyst. Mr. Herring understood.

He went with the winning big points from a powerful political constituency.

But he did cut important corners to do it.

Why did the Post and Pilot hide from pointing this out?

Mr. Herring didn’t have to switch sides to get his position before the court. He could have written an advisory opinion declaring the constitutional ban unconstitutional.

State law requires him to issue such an opinion if asked [he could have arraigned the request]. This obligation trumps any bar rule.

Republican calls for impeachment are childish.

But what will the Virginia Bar do?

Indeed the Norfolk Judge might not accept Herring’s “friend of the court brief” supporting the plaintiffs or allow him any legal role at all.

Confidence in our legal process is paramount.

The lawyer/client relationship is fundamental there to. Mr. Herring accepted the risk versus reward equation at play. He is a big boy, able to handle the consequences.

But are others?

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.