Herring's 1st year as attorney general defined by gay marriage case


Source - Richmond Times Dispatch

Late the night of Oct. 6, the day the U.S. Supreme Court cleared the way for same-sex marriage in Virginia, an exhausted Mark R. Herring returned to his Richmond apartment.

Like many others, the state’s attorney general had been caught by surprise when the court made its historic move. Herring had been in Arlington that morning, and quickly adjusted his schedule to talk to reporters about how Virginia was finally on the “right side of history.”

Then he was off to Richmond, where, before more reporters, strobe lights and TV cameras, he led a ceremony for Chesterfield County couple Carol Schall and Mary Townley, who renewed their vows on the steps of the city’s courthouse.

It was Herring’s big moment. At the end of the day, he stretched out on his bed, unable to sleep, reflecting on his victory and the monthslong battle that preceded it. He began to cry.

“I felt the weight of the expectations that so many people had and I wanted to make sure that I navigated a very difficult legal landscape to a successful outcome,” Herring said in a recent interview at his Richmond office. “I thought about how much people had been working for so long and hard, and the fierce criticism that we got initially. And it just kind of all hit me, at that point, that we won.”

Herring attracted national attention for his role in Virginia’s same-sex marriage case, but his first year brought action on a number of other fronts as well.

He reversed a policy by his predecessor, Republican Ken Cuccinelli, that forbade public colleges and universities to include protections for sexual orientation in their non-discrimination clauses.

He initiated a structural and technical overhaul of the Attorney General’s Office. He made it a policy to hire more veterans and stepped up the state’s fight against human trafficking, sexual assault on college campuses, and the abuse of heroin and prescription drugs.

Herring also took a pro-environmental stance by making Virginia the first state to defend the Chesapeake Bay cleanup plan from attacks by out-of-state attorneys general. And he sued major banks for allegedly defrauding Virginia taxpayers during the housing crisis.

But his role in Virginia’s fight for marriage equality will likely shape Herring’s legacy as attorney general, said Quentin Kidd, a Christopher Newport University political scientist and pollster.

“That’s what his term as attorney general will be remembered for. The thing that he’ll go down in history for in the commonwealth has happened in his first year,” Kidd said.

From his office on the sixth floor of the Pocahontas Building, Herring, 53, enjoys a stunning panoramic view of the state Capitol. Through the window by his desk, he can see the very steps where he took his oath as Virginia’s 48th attorney general on Jan. 11.

Only 13 days into his four-year term, the former state senator from Loudoun County sparked a controversy on the national stage when he deemed the state’s ban on same-sex marriage unconstitutional.

“I knew it was a difficult case. If we look at it now, we have had a string of court victories. But if you remember back in (January), the position that we took was sort of cutting-edge,” Herring said.

As a state senator, he had voted for the 2006 amendment to the state constitution that defined marriage as between a man and a woman, prohibiting the legal recognition of same-sex unions in Virginia. But over the years, Herring has said, his thinking evolved.

His position as Virginia’s new attorney general on the marriage amendment angered his political foes. Because Herring chose not to defend the law, he essentially sided with those bringing suit in a federal case seeking to overturn the law.

“It is appropriate for an attorney general to determine that he or she can’t defend a law; attorneys general have done that before, and they will do it in the future,” said Del. Gregory D. Habeeb, R-Salem, an attorney and a member of the House Courts of Justice Committee.

“But the idea of an attorney general to flip sides and take his client’s resources to use them against this client in pending litigation is shocking. Wherever you are on this issue, you don’t expect the state’s head lawyer to use state funds to attack Virginia law,” Habeeb said.

Herring said the marriage amendment was adequately defended by experienced attorneys brought in by national pro-traditional marriage groups.

But why did he side with marriage equality advocates wanting to do away with the law?

“It’s not a decision that I came to lightly; it’s a power that should be exercised sparingly with regard for our separation-of-powers principles,” Herring said. “But because the right at issue was so fundamental to so many Virginians, and because of our unique history in Virginia when it comes to civil rights, that was exactly the kind of case (in which) an attorney general should stand up for Virginians’ rights.”

Herring said it was time for Virginia to finally come down “on the right side of history” after opposing school desegregation in Brown v. Board of Education, and arguing for its ban on interracial marriage in Loving v. Virginia.

“I knew that Virginia had moved forward since the decades in which elected officials stood in the way of courageous Virginians (who) would then lead the way in civil rights issues, and it was important to stand up for the rights of Virginians who have been fighting for a long time.”

Carl Tobias, a professor of constitutional law at the University of Richmond School of Law, was one of three Virginia legal scholars who filed a court brief backing Herring’s decision not to defend the marriage amendment.

“I believe that reasonable people differed about whether Herring should have appointed outside counsel in the same-sex marriage case. Thus, some criticized him by saying the amendment was not defended, while others would have criticized him for wasting taxpayer money on outside counsel,” Tobias said.

In the end, he added, it would not have made a difference in the case because the lower and higher courts agreed that the ban was unconstitutional.

Many of Herring’s opponents, however, accused him of politicizing his office — not only in the same-sex marriage case, but also when he informed state schools that no provision of state or federal law precludes the children of undocumented immigrants legally residing in Virginia under the federal Deferred Action program from qualifying for in-state tuition.

During his 2013 campaign, Herring had repeatedly vowed to “take politics out of the Attorney General’s Office” — a snipe at his predecessor, Cuccinelli.

“What Herring really meant was that he was going to remove conservative politics and inject hyper-liberal politics,” Habeeb said. “But really, it would be naïve to expect politics to be removed from the Attorney General’s Office. But the problem is, that is what he based his campaign on. And then he substituted his political views with his predecessor’s views.”

CNU’s Kidd, however, said that while Herring is a partisan Democrat, he should not be compared with Cuccinelli, who was “essentially in the trenches of the culture war” in Virginia and nationwide.

“By definition, the Attorney General’s Office is going to be involved in political and partisan fights, but Herring has kept his promise more than he hasn’t kept it, because I draw the distinction between putting partisan issues on the table and responding to issues that have a partisan element to them that come to the table by outside forces. In that context, he has not been overly partisan in his first year,” Kidd said.

Legal scholar Tobias said Herring has made the Attorney General’s Office less politicized.

“Herring has wisely eschewed his predecessor’s practice of pressuring state boards to accede to his political views by threatening to not represent the board members if they were sued for acting in a way with which he disagreed,” Tobias said.

Herring has also discharged well the day-to-day responsibilities of the attorney general, which include advising state agencies, lawmakers and other public officials, Tobias said.

“The opinions that I have read are premised on sound legal reasoning with minimal concern for the political implications of the opinions,” he said.

Herring advises Gov. Terry McAuliffe, whom he regards as a friend and with whom he shares “similar philosophies on a lot of things.”

McAuliffe listened closely to Herring over the summer when considering plans to expand Medicaid without the legislature’s approval after Republican lawmakers had defeated the move during the 2014 General Assembly session.

“My role in that, in addition to being an outspoken advocate (for expanding Medicaid), is to ensure that whatever actions the governor took (on Medicaid expansion) were consistent with the law and that he had the authority to take those actions,” he said.

Herring would not say whether an executive order was on the table at any point. But he said McAuliffe “looked at all the options he had available in front of him.”

Unlike the governor, who is limited to one term under Virginia law, an attorney general can run for a second term. In the past, however, many attorneys general have used the office as a steppingstone for a gubernatorial bid. Cuccinelli is the most recent example.

Kidd said Herring and Lt. Gov. Ralph Northam are the only likely 2017 Democratic candidates. “If Herring isn’t overtly running at this point, he is clearly positioning himself strategically,” Kidd said.

Herring, neither confirming nor denying any gubernatorial ambitions, responded with a smile.

“I’m going to work as hard as I can to be a good attorney general,” he said, “and I am going to let the politics sort itself out later.”

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