A divided Virginia Senate on Monday voted down a House-approved bill seeking to require the state attorney general to defend state laws that are challenged in court.
The move came a little more than a year after Attorney General Mark Herring declined to defend the state’s ban on same-sex marriage — a law that was declared unconstitutional soon afterward.
Lt. Gov. Ralph Northam, a Democrat who presides over the Senate, voted no on the bill to break a 20-20 deadlock. Sen. John C. Watkins, Powhatan Republican, voted with the chamber’s 19 Democrats against the measure.
Delegate Brenda L. Pogge, James City Republican and sponsor of the measure, had said the bill was not designed to be a political statement, but was simply meant to ensure the state is represented in future cases.
But it became a bit of a proxy battle over the issue of gay marriage. On Monday, Sen. John Edwards, Roanoke Democrat, invoked the Civil War and massive resistance against the integration of public schools during the 1950s as times when the state has tried to defy the U.S. Constitution and the federal government.
“It takes courage sometimes to stand up for what’s right,” Mr. Edwards said. “It takes courage sometimes to stand up against public opinion when you know you have to because the federal Constitution trumps the state constitution.”
“The attorney general of Virginia did the right thing. He did the courageous thing in terms of a long tradition of attorney[s] general in Virginia and other states,” he said.
Mr. Herring’s office previously had opposed the measure, and, as Mr. Edwards did Monday, noted past instances in which state attorneys general similarly declined to defend state laws they believed to be unconstitutional.
For example, in 2013, former Attorney General Kenneth T. Cuccinelli II, a Republican, declined to defend the constitutionality of a law putting into place what was effectively a statewide school board with power to take over failing schools.
Ms. Pogge’s bill had provided for exceptions in cases in which there is a conflict of interest.
Prince William County Clerk Michele B. McQuigg had stepped in to defend the law shortly before Mr. Herring announced in January 2014 that he would not defend it, and a federal judge ruled the law unconstitutional soon afterward last February.
A panel of the 4th U.S. Circuit Court of Appeals upheld that decision over the summer, and the U.S. Supreme Court stayed that ruling after Mr. Herring had petitioned for a prompt review of the case.
In October, the Supreme Court declined to take up appeals from a handful of states that have banned gay marriage, including Virginia, clearing the way for marriage licenses to be issued in the commonwealth.
The high court has indicated it will decide whether same-sex couples have a constitutionally-protected right to marry during its current term.
The state legislature passed a constitutional amendment in 2005 defining marriage as between one man and one woman, and 57 percent of voters approved it in 2006.
But public opinion on the issue has moved since then. A poll released last spring showed that 50 percent of Virginia voters supported same-sex marriage and 42 percent were opposed.
• David Sherfinski can be reached at dsherfinski@washingtontimes.com.
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