Author of Va. constitution backs AG on gay marriage

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Three constitutional scholars, including the principal architect of Virginia's current constitution, have filed court papers supporting Attorney General Mark Herring's decision not to defend the state's prohibition of same-sex marriage.

Virginia's gay marriage ban is the target of what could become a landmark legal case working its way through the federal courts. A Norfolk district judge struck down the ban in February but delayed implementation of her decision pending an appeal to the 4th U.S. Circuit Court of Appeals.

In a "friend of the court" brief filed with the appeals court Thursday, the three scholars say Herring had the authority and the obligation to abandon the defense of Virginia's same-sex marriage ban once he determined that it violates the U.S. Constitution.

Herring, a Democrat elected in November, announced in January that he would not defend the ban, reversing the position of his Republican predecessor, Ken Cuccinelli, who had mounted a vigorous defense of the law.

Herring's decision delighted gay rights supporters and outraged opponents. One Republican lawmaker called for his impeachment on the floor of the House of Delegates, accusing him of dereliction of his duty to defend the state's laws.

Virginia prohibits same-sex marriage in statutory law and in an amendment to the constitution adopted in 2006.

The three scholars say Herring acted properly because two centuries of legal precedent make it clear that the state constitution is subservient to the federal Constitution.

One of the three is A.E. Dick Howard, a University of Virginia law professor who was executive director of the commission that fashioned the current Virginia Constitution, adopted in 1970. Howard was the principal draftsman of the document.

Also signing on to the brief were two other law professors, Daniel Ortiz of the University of Virginia and Carl Tobias of the University of Richmond.

Herring took an oath to defend the state and federal constitutions, and it has been clear since the federal Constitution was ratified in 1788 that it must prevail when there is a conflict, the scholars argue: "Public officials who swear to defend both constitutions owe their first loyalty to the Constitution of the United States."

Previous attorneys general of both parties have declined to defend state laws that they determined were invalid, just as Herring did, the scholars point out.

"An Attorney General is not an automaton who must blindly support Virginia law, especially when he concludes that it conflicts with the Constitution as the Supreme Law," they argue. "Virginia's citizens elect an Attorney General on the expectation that he will exercise his legal judgment in their interest. Attorney General Herring has the authority and the duty to do so here."

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