29 Jan 2014
Virginia’s newly elected Attorney-General Mark Herring
(D-Va) has decided not to defend in court a challenge to a ban on gay marriage
in Virginia’s state constitution. It is
his constitutional duty to defend the laws of Virginia in court, and only he has
legal standing to do so. If he refuses
to defend the law, no one else can.
Republicans in the state called upon newly elected Governor
Terry McAuliffe (D-Va) to appoint a special prosecutor to do what the state A-G
refuses to do. McAuliffe declined.
Thus we see that not only is the United States constitution
being distorted to find a right that did not previously exist in it, but also that
constitutional obligations of state officials are being refused in order to
facilitate the rape of the Virginia state constitution.
Constitutions are put in place to define the offices,
political responsibilities, and general structure of an entity’s
government. It is a convenient place to
entrench rights because a constitution is so hard to change, and made
deliberately so. The constitutional entrenchment
- that marriage was between a man and a woman - surmounted the steep difficulty of
the amendment process. That the declared
will of the majority can be overturned by legal gambits has to make one wonder
about the value and even validity of other parts of the constitution, and the
deal its existence once represented between the people and their government.
If the Virginia state A-G can ignore his responsibility to defend the laws
of Virginia in court, on what basis does he prosecute people under those
laws? If the elected officials of the
state of Virginia hold their offices on account of a law they refuse to uphold,
why should the people of Virginia pay any attention to them and their alleged
claim to the right to exercise political powers granted under that
constitution? How can they accept office on the one hand, and then decline to perform the office on the other?
There are two immediate answers to the second question: the fear of the coercive
powers those officials have while they retain the respect of the officials who
do the actual coercing; and a general inertia.
The inertia is like that of an aircraft continuing to fly forward even
as the cockpit portion tears off.
The refusal of the state A-G and the Governor of Virginia to
defend that state’s constitution in court undermines the very basis of the
offices they hold. Their refusal undermines the basis of the law by which they hold office. If the Gov and A-G can ignore their responsibilities of office, why shouldn't the people ignore their responsibilites towards the state, such a paying taxes and obeying state laws? If the Governor and the Attorney-General do not respect the laws of the state, why should anyone else?
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