Virginia attorney general joins fight to overturn state's same-sex marriage ban


#1

Attorney General Mark R. Herring says in a brief filed in federal court in Norfolk that marriage is a fundamental right and the ban is discriminatory.

“After a thorough legal review of the matter, Attorney General Herring has concluded that Virginia’s current ban is in violation of the U.S. constitution and he will not defend it,” spokesman Michael Kelly wrote.

usnews.nbcnews.com/_news/2014/01/23/22408212-virginia-attorney-general-joins-fight-to-overturn-states-same-sex-marriage-ban?lite

Interesting that Virginia’s ‘ban’ is a constitutional amendment. So the attorney general is claiming the US Constitution somehow invalidates the state constitution. I would think one of the duties of this office is to defend the state constitution.

This being Virginia it is worth noting that the argument that I’m sure eventually will be employed to strike down all state constitution amendments prohibiting ‘gay marriage’ is that the 14th amendment to the US Constitution which prohibits the states from abrogating rights that a US citizen has. If you’ve never studied the history of this US amendment it is interesting. After the Confederacy lost the federal government, including congressional representatives from the Confederate states voted to pass the 13th amendment outlawing slavery. To be clear even the Confederate states helped to pass the 13th.

Then the 14th was presented. And the Confederate states voted against it. So the federal government declared the states dissolved (the sames ones that voted for the 13th) and then was able to pass the 14th (although this is problematic because Oregon rescinded its affirmative vote after the dissolution of the southern states). It then forced the southern states to ratify this amendment (that is the democracy the US has been giving the world) in order to rejoin the Union and end the military occupation. Whether or not the 14th amendment served a good purpose at the time it will now be used to force gay marriage on the entire US despite the will of the people.


#2

The dude needs to be fired for breaking his oath to uphold the laws of VA.

Alas as a Democrat rules simply will never apply to him.


#3

If the laws of VA are unconstitutional under the US Constitution then they are not valid laws at all. The US Constitution overrules the VA Constitution.

The SCOTUS DOMA decision is relevant here

rossum


#4

Funny you should say that, because in defending his decision not to defend the law, he cited examples of his very conservative predecessor, Ken Cuccinelli, choosing not to defend the laws that he believed were unconstitutional. If it’s good enough for Cuccinelli, it should be good enough for Herring.


#5

In all honesty I haven’t lived in VA very long, can you elaborate on specific examples of this behavior by the former AG?

[quote=rossum]If the laws of VA are unconstitutional under the US Constitution then they are not valid laws at all. The US Constitution overrules the VA Constitution.

The SCOTUS DOMA decision is relevant here
[/quote]

I am well aware of that. The problem is refusing to do his job which is to defend the laws in court. He is heavily indebted to LGBT groups and has made this decision for purely personal political reasons.


#6

The Virginia “same sex marriage ban” is a law defining marriage to be between one man and one woman as husband and wife. I voted for it in 2006 and we won by a landslide! This not only was right with what the current United States law was at the time, but it also was right with what the Catholic Church teaches.

Unfortunately (and probably because of the democrats in power), in 2013 the United States changed its definition of marriage. Now people across the country are wanting the laws in their states to change as well. The newly elected democrats in Virginia are leading this cause in our state; Mark Herring, the new attorney general, included.

What does that say about United States law if they can change the very definition of marriage? To me it says that something is flawed. I think the so called “separation of Church and State” is the great downfall of our nation. If we looked to the Church for our lawmaking, then we would be better off. Instead we value freedom over morality and lose sight of Truth.

Homosexual marriages are invalid to me because they cannot reproduce with each other to have children. That is the purpose of sex: to have children, and the purpose of marriage: to have a family. American culture is confused about these matters of sex and marriage and I side with the Church over my country and state. Even if Virginia changes its law, it does not change Church teachings on homosexuality, which are founded on the Scriptures.

Cuccinelli believes that homosexuality is wrong, just as a Catholic (or Christian) should. Mark Herring was misleading when he referred to how the former Attorney General acted when in office. Cuccinelli never supported homosexuality as far as I know. He just lost the race for governor of Virginia to a liberal Catholic, McAuliffe, who supports homosexual rights. Now everyone wants the law overturned because the democrats are in power.


#7

Remember that SCOTUS only struck one provision of DOMA. If the governor believes that the VA constitutional ammendment is unconstitutional, it’s not his job to simply ignore it. There is a reason that there is a separation of powers. Such decisions belong to the judiciary, not to the executive branch and certainly not to the state-level executive office holder.


#8

He is not ignoring it, the law is still currently in force and same sex couples cannot get married in Virginia.

The question is not about enforcing the law – it is being enforced. The question is about whether or not the Virginia AG should put forward a case in the forthcoming court challenge to the law. That is a different question. If the AG thinks that the law is unconstitutional, then surely those who support the law should find a different lawyer to argue their case.

rossum


#9

The US, and Virginia, changed its definition of marriage in 1967 – see Loving v Virginia. The legal definition of marriage changes more than you seem to think.

Civil marriage is defined by civil law. There are mechanisms specified in the US and state constitutions for making changes to civil laws. Both parties have made changes to those laws.

Homosexual marriages are invalid to me because they cannot reproduce with each other to have children.

Are you saying that women past their menopause, who can no longer have children, cannot get married? If so then you are proposing a change in the law. Will you require all married older women to get an automatic divorce?

I do not think that you have thought through this line of argument carefully enough. There are legally married heterosexual couples who cannot have children.

rossum


#10

The SCOTUS declared itself the arbiter of federal constitutionality in Marbury v. Madison. It also declared itself arbiter of state constitutionality. But this power itself is extra constitutional. It is now a power derived from customer and practice. The presidential oath of office found in the constitution has the president promise to uphold the constitution. This is taken to mean that the president must follow the constitution. To do so requires being able to judge what is constitutional or not. I would say the power to judge constitutionality lies not just in the SCOTUS.

In this case the issue is a state constitutional amendment and the specific agent is the attorney general. I would imagine in Virginia the AG is charged with defending the constitution of Virginia. Typically AGs, like most government agents, defend and enforce the law as written or practiced without regard to personal beliefs. But there are always exceptions. And I imagine people of many different political beliefs would cheer a government agent who refuses to defend a law that they think is wrong. Would we really want a person as AG that defends the law no matter what that law is?

Personally I’m shocked that anyone would think marriage could be between two people of the same sex. I’m even more shocked that someone could imagine that not allowing such a legal relationship is discriminatory. Given the opinion of the masses it is not surprising to find men in office who hold these strange views. I think we’ll see many government agents refusing to defend marriage laws based on conscience. But the inevitable end is the SCOTUS will declare marriage amendments to be invalid. They are just taking their time. Since so many citizens have recently voted for constitutional marriage amendments they don’t want to make it too obvious democracy is a sham.


#11

To be precise, it reversed a change to the definition of marriage. Anti-miscegenation laws were themselves a novel change.

The job of the AG isn’t to change the law, but to enforce it, prosecute those who break it, and defend it when challenged. If he wanted to change Virginia’s constitution to remove the amendment defending marriage, there were legal ways to do so. Using the office of AG to subvert the clear will of the people he is supposed to be working for is an abuse of power.

Tonight’s special is a lovely aged red herring, marinated in a false equivalency sauce.

Sterile male/female couples are a rare exception to a norm that cannot be determined without extensive medical testing which is not 100% accurate except in cases where the genitals are actually absent. Same-sex couples are universally infertile without exception. Taken as a group, marriages are fertile. Same-sex couples living together are not, and never can be.


#12

It is a fact that homosexuals cannot have children. They try to get around this fact through practices of artificial insemination, which is so gravely disordered. Never once has a male impregnated another male and neither has a female been impregnated by another female. It is common sense.


#13

Novel? Nehemiah 13:25 is novel? That’s a new one on me.

The job of the AG isn’t to change the law, but to enforce it

Which he is doing. Same sex couples cannot get legally married in Virginia.

and defend it when challenged.

So, you want a lawyer defending a law he thinks is unconstitutional to argue your case in court? Strange. Surely you could find a better lawyer to do the arguing, one who believed in the legality of the law he was supporting.

If he wanted to change Virginia’s constitution to remove the amendment defending marriage, there were legal ways to do so.

The law has been challenged in court as being unconstitutional, following the USSC’s DOMA decision. That is a perfectly legal and proper way to change a law. That was the method used to change the anti-miscegenation laws back in 1967.

Sterile male/female couples are a rare exception to a norm that cannot be determined without extensive medical testing which is not 100% accurate except in cases where the genitals are actually absent.

You are wrong. Are women past their menopause “rare”? I do not think so. Even if one exception is allowed, then there is one marriage that does not meet your rule, so your rule cannot apply to all marriages. Any married woman over sixty is almost certainly infertile, that is a lot more than a “rare exception”.

Your proposed rule is not universal, and so it loses its power as an argument. There are infertile heterosexual married couples, so you cannot use infertility as a bar to marriage. Even the Catholic Church does not see it that way, or is there some rule of the Church that I am not aware of that married couples must be divorced after so many years if they do not have any children? No, I didn’t think there was. You are going beyond what the Church requires here. You need to find a better line of argument.

rossum


#14

It is a fact that a man who has had an orchidectomy, or a woman who had had a hysterectomy, cannot have children. Virginia law allows such people to get married. Similarly for women past their menopause, who can no longer have children.

The existing law does not take account of the fertility of the people marrying, so it is irrelevant to any legal arguments about the law.

rossum


#15

Rossum,

You seem to know a lot on the subject of marriage and having children. Like I said before, homosexuals cannot have children together. I never said anything about infertility or surgical procedures. Those are the subjects of another debate. You seem to have many chips on your shoulders. I think you should calm down before you start to accuse people of things they are not even doing.

I believe that marriage should be between one man and one woman, not members of the same sex. One reason I have that supports that is that homosexuals are physically unable to have children together. God made us men and women for the purpose of procreation.

Women who go through menopause may have once had children. To think that they should divorce is absurd and I never said they should. Just think of Sara and Saint Elizabeth, they both conceived in old age when they were believed to be barren. You sure come up with some unfounded accusations.

Maybe you should tell us the perfect definition of marriage, since you seem to know so much on the topic.

Thank you for posting.


#16

False. A male homosexual and a lesbian may have children together. Homosexuality does not equate to infertility. Some lesbians have had children by the usual process. Sometimes the father was a gay male friend.

My point is that infertility is not a bar to marriage. Neither in Virginia law, not in Catholic law is fertility required for marriage. Your points about fertility are irrelevant to the argument about legal civil marriage in Virginia. There are already legal civil marriages in Virginia where the couple are infertile for one reason or another.

I believe that marriage should be between one man and one woman, not members of the same sex.

That is your belief, not mine. It also seems that it is not the belief of the USSC, as shown by their DOMA decision. It is also not the belief of a number of US states where same sex marriage is legal.

One reason I have that supports that is that homosexuals are physically unable to have children together.

Not strictly true, as I pointed out above. What do you propose about opposite-sex married couples who are physically unable to have children together? Is the ability to have children essential to marriage? If yes, then some opposite-sex couples will have to be barred from marriage. If it is not essential, then why do you insist on it for some marriages but not others?

Women who go through menopause may have once had children.

And they may not.

To think that they should divorce is absurd and I never said they should.

I agree that it is absurd, so you should stop insisting on fertility as an essential condition for marriage. Fertility is not relevant either to civil marriage in Virginia or to Catholic marriage. You would do better to drop all arguments about fertility as being irrelevant in this case.

Maybe you should tell us the perfect definition of marriage, since you seem to know so much on the topic.

Pick one:

[list]*]Marriage (David) = 1 husband, 8 wives.
*]Marriage (Solomon) = 1 husband, 700 wives, 300 concubines.
*]Marriage (Nehemiah 13:25) = 1 husband, 1 wife of the same people.
*]Marriage (Moslem) = 1 husband, up to 4 wives.
*]Marriage (Joseph Smith) = 1 husband, many wives.
*]Marriage (mainstream Mormon) = 1 husband, 1 wife.
*]Marriage (Catholic) = 1 husband not previously divorced, 1 wife not previously divorced.
*]Marriage (Protestant) = 1 husband, 1 wife.
*]Marriage (Virginia pre-1967) = 1 husband, 1 wife of the same race.
*]Marriage (Netherlands since 2001) = two adults.
*]Marriage (California June 2008 - November 2008, June 2013 on) = two adults.
*]Marriage (California November 2008 - June 2013) = 1 husband, 1 wife.[/list]
There are a lot of different versions of marriage to pick from. The definition of civil marriage should be decided through the usual political/legal process.

rossum


#17

That is a proscription against mixed religious marriages at that time. We know that this wasn’t a permanent law because St. Paul - a devout Jew and a member of the priesthood - was also a Roman citizen. Roman citizenship was something that one could only obtain through either birth, marriage, or military service. We know that he didn’t serve in the Roman army, so there must have been a marriage to a Roman citizen by one of his forefathers.

Which is the law of Virginia. As the Supreme Court said in their DOMA decision, definition of marriage is something left to the state. What he is doing is attempting to change the law through abuse of his office.

As an officer of the court, it is his duty to offer the best possible defense for his client: The people of Virginia. His personal views are supposed to be irrelevant. Do you think Dahmer’s defense attorney approved of his actions?

It was challenged by the person whose duty it is to defend that law.

We have several examples of women who conceived after menopause, and menopause isn’t something that always hits at a given age. Can you tell just by looking at a woman if she is fertile or not with 100% accuracy?

Can you tell at a glance when a couple is infertile? There are three possible combinations when pairing any two humans: Male/female, male/male, and female/female. Which of these pairings has even the possibility of bringing children into the world without outside intervention? For any given male/female couple, can you determine - without asking anything outside the scope of normal questions of identification - if they are fertile or not with 100% accuracy?


#18

Up until 2001, I see variations on a single theme: Male and female.


#19

The Code of Canon Law of the Catholic Church states:

Can. 1055 §1. The matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life and which is ordered by its nature to the good of the spouses and the procreation and education of offspring, has been raised by Christ the Lord to the dignity of a sacrament between the baptized.

I must highlight two parts:

  1. It is established between a man and woman.
  2. It is ordered to the good of the spouses and procreation and education of offspring.

This is what the Church teaches and what I believe to be right. Anything other than this is contrary to the Sacrament of Marriage. The Church does not recognize or administer same sex unions. What the state says is irrelevant. The Church has ultimate say on this matter.


#20

I can tell at a glance that there is no clause in current Virginia law that requires either or both parties to be fertile. Fertility is irrelevant to the current law. It is you who is proposing a new test for fertility to be added to marriage law.

For any given male/female couple, can you determine - without asking anything outside the scope of normal questions of identification - if they are fertile or not with 100% accuracy?

For any given person, can you determine - without asking anything outside the scope of normal questions of identification - if they are male or female with 100% accuracy?

What of someone with XXY syndrome? Various intersex biological conditions? Trans people, both pre-op and post op?

rossum


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