When Mark Herring, the attorney general of Virginia announced on Wednesday that the state’s ban on gay marriage was unconstitutional and that he will not defend the law in court, he was hailed by marriage equality activists as a hero.
Herring put a handful of his fellow attorneys general in a tough spot though. There are currently eight states that have some kind of law against same-sex marriage on the books and have a Democrat as the chief lawyer sworn to uphold their state’s laws and constitution.
With Herring’s decision—and he joins that of fellow Democratic attorney general Kamala Harris of California, Kathleen Kane of Pennsylvania, and Lisa Madigan of Illinois who also decided not to defend the state’s marriage law—pressure is growing on the rest to come down on what advocates for marriage equality call the right side of history.
Most of the states with gay marriage bans and Democratic attorneys general are, like Virginia, in the more conservative South where Democratic officeholders of any stripe can be rare. In one of the rare outliers, Oregon, attorney general Ellen Rosenblum seems all but certain to follow Herring’s lead, according to advocates in the state, where two lawsuits challenging the constitutionality of the state’s ban were consolidated into this week.
“Obviously we are reading the news,” said Michael Kron, a spokesman for Rosenblum. “At this point we are looking at the decision [by Herring] in Virginia and we have obviously been thinking about the cases pending in Oregon for a while.”
“It is very likely we will have something in the next few days,” he added.
Rosenblum has already stated her support for same-sex marriage, and she has pushed for a ballot initiative to overturn the state’s law.
In Nevada, another non-Southern outlier where same-sex marriage is illegal, Attorney General Catherine Cortez Masto has come out firmly against gay marriage, filing a brief urging the U.S. Ninth Circuit Court of Appeals to uphold the law and comparing same sex marriage to incest and bigamy.
“The interest of the State in defining marriage in this manner is motivated by the state’s desire to protect and perpetuate traditional marriage,” Masto wrote. “In establishing this criterion and others — e.g., age, consanguinity, unmarried status, etc. — the state exercises its prerogative as a State, and that exercise is entitled to respect.”
Conservative legal scholars have argued that there is something unsettling about attorneys general deciding which state laws to defend.
“Mr. Herring's decision is unsettling to citizens of Virginia and an affront to the rule of law in that a newly elected official is today choosing which laws he would like to enforce and which he would rather not,” wrote Lynne Kohm, a family law professor at Regent University School of Law in an email. It would not be unreasonable for Virginia's citizens to have a sense of defenselessness as a result. Playing politics with the state constitution now places people's faith in the democratic process in an uneasy posture at best.”
This is largely the position that Democratic AGs across the South have taken. In North Carolina, Attorney General Roy Cooper, who came out in favor of same sex marriage earlier this year, told The Daily Beast in an email, “North Carolina should change its laws to allow marriage equality and I believe basic fairness eventually will prevail. However, when legal arguments exist to defend a law, it is the duty of the Office of the Attorney General under North Carolina law to make those arguments in court.”
The last part of that statement was echoed by Allison Martin, spokeswoman for Kentucky Attorney General Jack Conway, who said, "The Kentucky Attorney General, by statute and oath, is required to defend the Kentucky Constitution. It would be inappropriate to discuss personal views on issues that are pending before the court.”
In Arkansas where a lawsuit was filed last December to overturn the state’s gay marriage ban, a spokesman for Attorney General Dustin McDaniel said, “The Attorney General’s Office is carrying out its responsibility to defend the Arkansas Constitution in pending court cases, and will continue to do so. However, Attorney General McDaniel himself strongly opposes discrimination of any kind.”
The Tennessee attorney general’s office said in a statement, “This office is currently defending against a challenge to Tennessee's constitutional and statutory provisions regarding same-sex marriage. The United States Supreme Court recently stayed a lower-court ruling that Utah's ban on same-sex marriage is unconstitutional. Unless the Supreme Court ultimately rules otherwise, our office will continue to defend Tennessee's provisions.”
Other states with Democratic attorneys general include Mississippi, Arkansas, and Missouri. The attorneys general there could not be reached for comment but advocates in those deeply conservative states said that their focus was more on achieving more basic civil rights protections like against workplace discrimination than focusing on marriage equality.
Evan Wolfson, president of Freedom to Marry, argued that it was appropriate for AGs to follow Herring’s lead, noting that many of these laws were passed during an anti-gay marriage wave, and that public opinion has now shifted staunchly in the other direction.
“Even if an attorney general says she is not going to defend this discrimination, there will still be a full and fair hearing in court. The imprimatur of the attorney general and the state should on the side of families, not on the side of discrimination.”
Greg Magarian, constitutional law expert and professor of law at Washington University in St. Louis, said that depending on state law, AGs often have wide latitude to decide the cases they will take up and those they will not.
“There is a prudence in saying right now if we could take a perfect poll I know that the people of my state would want same sex marriage, so why would I put state resources into defending this law I know I don’t like and that is unlikely to survive for very long. The smart decision becomes to just cut bait on the thing.”