- The Washington Times - Tuesday, February 10, 2015

The Virginia House of Delegates passed a bill on Tuesday designed to require the state’s attorney general or a designee to represent the commonwealth in cases challenging the state’s laws or the state Constitution, a little more than a year after Attorney General Mark R. Herring announced he would not defend the state’s ban on gay marriage.

The measure cleared the GOP-controlled House on a 68-32 vote on crossover day, which is the last day during the legislative session for the House and Senate to act on its own legislation, with exceptions that include the budget bill.

Del. Brenda L. Pogge, James City Republican and original sponsor of the measure, said the bill was not designed to be a political statement, but rather to ensure the state has representation in future cases if similar situations arise.

“It wasn’t the issue of gay marriage so much as the [principle] that we had an attorney general who had sworn to uphold the Constitution of Virginia and was AWOL on our first challenge,” Ms. Pogge said Tuesday.

Soon after Mr. Herring announced his decision last January, a federal judge ended up ruling the state’s gay marriage ban unconstitutional in February — a decision that was upheld last summer by a panel of the 4th U.S. Circuit Court of Appeals.

A spokesman for Mr. Herring said he didn’t think the bill was necessary and that it was clearly motivated by Mr. Herring’s “correct determination that Virginia’s marriage ban was unconstitutional.”

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“The attorney general is elected by the people of Virginia to exercise his best independent legal judgment on their behalf,” spokesman Michael Kelly said in an email. “That’s what Attorney General Herring has done, just as attorneys general before him have done, and we didn’t see bills like this.”

Indeed, Mr. Herring’s Republican predecessor, former Attorney General Kenneth T. Cuccinelli II, declined in 2013 to defend a law enacting what was effectively a statewide school board with the power to take over failing schools.

In that case, former Gov. Bob McDonnell, a Republican, hired special counsel, and Gov. Terry McAuliffe, a Democrat, eventually declined to appeal a ruling that the “Opportunity Educational Institution” was, in fact, unconstitutional.

Mr. Kelly also pointed to similar cases from prior attorneys general, including decisions Republicans Jerry Kilgore and James S. Gilmore III made during their respective times in office.

The bill provides for exceptions in the event of a conflict of interest, but Ms. Pogge said that if there is a personal problem, the attorney general should still appoint a designee.

After Mr. Herring’s decision, Prince William County Circuit Court Clerk Michele B. McQuigg had intervened to defend the law with backing from the legal group Alliance Defending Freedom.

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Last August the U.S. Supreme Court agreed to stay the ruling by the 4th Circuit after Mr. Herring petitioned the high court for a prompt review of the case.

In October the Supreme Court then declined to take up appeals from five states with gay marriage bans, including Virginia, which cleared the way for marriage licenses to be issued in the state. The high court also declined to intervene this week after a federal court’s recently ruling Alabama’s gay marriage ban unconstitutional, leading some advocates to speculate the court will rule that gays and lesbians have a constitutionally protected right to marry when it takes the issue up this term.

The Virginia General Assembly passed a constitutional amendment in 2005 defining marriage in Virginia as between one man and one woman, and voters ratified the amendment with 57 percent of the vote in 2006.

Public opinion on the issue has changed since then, however. A Quinnipiac University poll from last spring showed that 50 percent of Virginia voters favored same-sex marriage, compared to 42 percent who were opposed.

• David Sherfinski can be reached at dsherfinski@washingtontimes.com.

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