In Response to “Being on the Right Side of the Law… Illegally”
First, I’d just like to acknowledge that what Michael Sobey did in his piece is important. Whether intentional or not, challenges to the way we cover a story, and what stories we cover, keeps us that much more mindful of our content. More importantly, I would argue that it’s absolutely essential to a democratic society to challenge the actions of our elected officials, regardless of whether or not we find the outcomes favorable.
Secondly, Sobey didn’t explicitly express his feelings on overturning of the ban, but I would argue that it was the correct thing to do. Like Attorney General Mark Herring said, for once this state is actually on the right side of a civil rights issue. Ignoring the fact that nothing has actually changed because the decision was stayed and it’s still being appealed; our state is a better, freer, more equal, and more inclusive place to live because of this.
For that, we should pat ourselves on the back.
We should also acknowledge that the ban was going to go eventually. The political landscape across the country surrounding the issue has changed immensely. It’s a little bit harder to gain traction blaming our country’s problems on “God’s anger” at our tolerance. Thankfully, even the most staunch homophobic and/or conservative talking head would agree that The Westboro Babtist Church and its supporters are (sorry not sorry) batshit crazy.
That’s due in large part to the bravery of LGBT individuals and their allies who’ve fought in the streets, at the dinner table, and on screen to prove that there’s nothing wrong with being gay.
In Virginia, over the last few years, an interesting thing has happened in that the numbers have essentially switched. As I pointed out in the first story about the case, the ban was approved in 2006 with a 57 percent majority, but now amongst likely voters, gay marriage is favored by 56 percent.
Some might argue that that justifies the decision because now it’s really an issue that could be settled democratically; however I would argue that it doesn’t even matter. We have the judiciary to protect minority groups from the tyranny of the majority. The ban should’ve been overturned years ago.
The issue raised by Sobey, as well as a number of Republican leaders, is essentially that the federal case wasn’t fair because the defense was sabotaged by the attorney general when he refused to defend the ban.
Herring isn’t the first attorney general to not defend a gay marriage ban. It’s actually somewhat of a trend across the country, including in Pennsylvania, Nevada, and just last week, Oregon.
If Sobey is right, then this should actually worry you no matter how you feel about the result. Setting such a precedent- that a governor or attorney general can “circumnavigate the laws and procedures set in place and push the notion of checks and balances to the side when it benefits them, their party and their interests.”- is definitely a bad thing. Just imagine if it was a republican doing away with hate crime laws.
Where this argument fails though, is that the ban wasn’t left totally undefended- quite the opposite. It was defended by clerks from the respective courts, and they were represented by a group called Alliance Defending Freedom, which has an annual budget of… drum roll… over $30 million.
One of the interesting facts we reported was that the head attorneys for the plaintiffs had also fought against Prop 8 in California. Well, ADF also argued in that case. I’m not an expert on well-funded-megachurch-pro-traditional-marriage organizations, but I don’t know of anyone who could’ve better defended the ban.
And it certainly was well-defended. I was in the courtroom and can assure you the defense wasn’t handicapped or unfairly limited (It’s just a hard case to make in 2014).
It doesn’t feel right defending a politician, but what Herring did wasn’t wrong, tyrannical, or illegal. He concluded that the ban violates The 14th Amendment of the U.S. Constitution, which he is also charged with defending and upholding. It’s probably safe to say that under those circumstances he was definitely the wrong person to defend the ban.
But, to be sure, opponents are filing a complaint against Herring in the state Bar and we’ll just have watch where that goes.
By Sean Davis