- The Washington Times - Sunday, February 16, 2014

A federal judge’s opinion striking down Virginia’s constitutional amendment banning gay marriage has generated emotional, visceral reactions from people on both sides of the issue. But one voice that has been uncharacteristically silent in the wake of the landmark ruling is that of former Virginia Attorney General Kenneth T. Cuccinelli II.

The ordinarily outspoken Republican, who lost the state’s governor’s race in November, had little to say about U.S. District Court Judge Arenda L. Wright Allen’s decision Thursday night that the state’s ban violates guarantees of due process and equal protection under the Fourteenth Amendment to the U.S. Constitution.

Asked to comment on the ruling, Mr. Cuccinelli said in an e-mailed response to questions only that he was “disappointed” in the ruling but “cautiously optimistic” that the U.S. Supreme Court will eventually reiterate its decision from four decades ago in Baker v. Nelson.

“In that case, the Court let stand Minnesota’s laws that recognized that marriage was only an institution between one man and one woman — as Virginia has recognized — and that the subject matter of marriage was the exclusive province of the states — not the federal government,” he said.

Mr. Cuccinelli did not address a question about the decision of his successor not to defend the state’s ban on same-sex marriage. Attorney General Mark R. Herring, a Democrat, voted for the ban in 2006 as a state senator but last month said he now wants the state to be on the right side of history and the law.

The decision has prompted calls for Mr. Herring’s impeachment from Republicans, some of whom were similarly outraged over the opinion Thursday.

Delegate Robert G. Marshall, Prince William Republican who sponsored the Marshall-Newman voter-approved amendment banning same-sex marriage in 2006, lambasted Judge Wright Allen for her ruling and said she should be impeached.

“The decision appropriately issued in the cover of darkness is a syllabus of errors, a compendium of ineptitude, and a farce claiming authority,” Mr. Marshall said. “Legislating through the Courts against the will of the people is lawless disregard for our representative form of government.”

On the other side, Democratic Gov. Terry McAuliffe — who made Mr. Cuccinelli’s positions on gay rights issues, if not gay marriage, a central theme of last year’s campaign — hailed the decision.

“As this case continues through the judicial process, I will enforce the laws currently on the books, but this decision is a significant step forward in achieving greater equality for all of our citizens,” he said.

Mr. Cuccinelli, one of four Virginia lawmakers in 2004 to sign a resolution that said “the only sure way to protect marriage is by a federal constitutional amendment,” on the campaign trail last year declined to revisit that issue amid a wave of states legalizing gay marriage and increasing federal recognition of the unions.

But he told editors and reporters at The Washington Times during his race against Mr. McAuliffe that he was focused on defending the state’s same-sex marriage amendment.

“I’m running for governor, and I think Virginia’s decision should be respected within the court system,” Mr. Cuccinelli said.

In 2010, Mr. Cuccinelli advised state colleges and universities that they were not empowered by the state constitution to include anti-discrimination protections on the basis of sexual orientation, saying that power lay solely with the General Assembly. The move prompted former Gov. Bob McDonnell, a Republican, to issue a clarifying executive directive saying that discrimination of any kind in the state workforce would not be tolerated.

Judge Wright Allen, appointed to the bench in 2011 by President Obama, referenced that action in Thursday’s ruling — taking a jab at Mr. Cuccinelli.

Virginia’s former attorney general directed colleges and universities in the commonwealth to eliminate protections that had been in place regarding ‘sexual orientation,’ ‘gender identity,’ ‘gender expression’ or like classification from the institutions’ nondiscrimination policies,” Judge Wright Allen wrote in her opinion. “This record alone gives rise to suspicions of prejudice sufficient to decline to defer to the state on this matter.”

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