- The Washington Times - Thursday, October 6, 2011

Virginia Attorney General Kenneth T. Cuccinelli II is strongly criticizing the Obama administration for abandoning its defense of a federal law definingmarriage as a union between a man and a woman — the latest in a series of high-profile actions regarding gay marriage from the state’s top prosecutor.

“If you truly don’t think it’s constitutionally defensible, you don’t defend it,” said Mr. Cuccinelli, a Republican, said this week. U.S. Attorney General Eric H. Holder Jr. “obviously thought it was for a while, and what changed? It’s kind of hard for me to see that when he doesn’t offer a constitutional analysis … to legitimize changing that position.”

In February, Mr. Holder announced the Justice Department would no longer defend in court the Defense of Marriage Act, a federal law signed by President Clinton in 1996 that defines marriage as a union between a man and a woman.

He defended the decision by saying new lawsuits had been filed in jurisdictions with no precedent on how laws regarding sexual orientation should be treated, and that a tougher standard should be applied to arguments against unions between same-sex couples.

In addition, President Obama also concluded that a section of the law “as applied to same-sex couples who are legally married under state law” violates the equal protection component of the Fifth Amendment.

The department’s decision to abandon its defense of the law in court surprised both proponents and opponents of the law, but such a move is not unprecedented.

“Every attorney general has an opportunity to decide when an issue is a close question of law, what side they want to come down on,” said Claire Guthrie Gastanaga, a lawyer for Equality Virginia and a former Virginia chief deputy attorney general. “As the law has evolved, so has his position. It’s not unusual, or wrong, or inherently political. It’s just the nature of the game. Reasonable lawyers disagree all the time.”

For example, Solicitor General Paul D. Clement declined to defend a federal law prohibiting the display of ads supporting medical marijuana on public buses and subways. After Mr. Holder’s announcement, the Republican-controlled House chose Mr. Clement to represent the body in defense of the act, and recently tripled the amount earmarked for the legal fight from $500,000 to up to $1.5 million, drawing ire from Democrats.

However,King & Spalding, the law firm for which Mr. Clement was working, announced in April it was dropping the case.

That did not sit well with Mr. Cuccinelli, who promptly fired the firm, which had been serving as special counsel to the Virginia Attorney General’s Office since September 2009.

The move “was such an obsequious act of weakness, that I feel compelled to end your legal association with Virginia so that there is no chance that one of my legal clients might be put in the embarrassing and difficult situation like the client you walked away from, the House of Representatives,” Mr. Cuccinelli wrote.

Virginia simply cannot abide placing any reliance whatsoever on a law firm that makes decisions and acts in the manner of King & Spalding,” Mr. Cuccinelli continued. “For future reference, your firm is not welcome to reapply for special-counsel status at any time as long as I am the attorney general of Virginia.”

Firm partner Joseph E. Lynch, to whom the letter was addressed, declined to comment.

Mr. Cuccinelli has also become involved in several other gay-rights issues that have resulted in controversy.

He was criticized for advising state colleges and universities in early 2010 that they could not include sexual orientation in their nondiscrimination policies without General Assembly approval.

Gov. Bob McDonnell, a Republican, agreed with the attorney general’s legal reasoning, but issued a nonbinding executive directive stating discrimination would not be tolerated.

More recently, Mr. Cuccinelli’s office told the state Board of Social Services that it lacked the authority to approve regulations prohibiting private agencies from discriminating against prospective foster or adoptive parents based on gender, sexual orientation, political beliefs, age, disability or family status. He said the law permitted protections based only on race, color or national origin.

The board voted 7-2 in April to strip the sexual-orientation protection from the regulations, but last month agreed to reopen the public comment period.

In June, the state Board of Juvenile Justice, against advice from the attorney general’s office, retained a discrimination ban based on sexual orientation at its residential centers. And the Board of Corrections reaffirmed such a nondiscrimination policy last year, despite concerns from Mr. Cuccinelli’s office.

“Lawyers generally are advisers,” Ms. Gastanaga said. “They don’t make policy decisions for policy boards.”

Mr. Cuccinelli insists that his advice, legal opinions, arguments and pursuits are grounded in law, not politics.

“When you sign up to be an attorney general, there are plenty of laws on the books that I don’t like,” he said. “But I signed up to enforce all of them, and that’s part of the deal with that job.”

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