If they win their respective bids to become Virginia’s next governor and attorney general, Terry McAuliffe and Mark Herring won’t be able to affirm the oath of office come January without crossing their fingers behind their backs. Neither candidate supports the state constitution’s recognition that the two sexes are required to make a marriage, a provision enacted by a decisive 57-percentage statewide majority in 2006 — amid a Democratic rout nationwide.
Asked this summer whether he would seek to overturn the commonsense amendment, McAuliffe employed the kind of Orwellian non-denial typical of his entire campaign: “If you look at the composure of the legislature, it’s an issue that I’m not going to spend my time focusing on. It’s not going to change during my four years as governor.”
But the long-time Bill Clinton consigliere — whom Ralph Nader once called “slipperier than an eel in olive oil” — conveniently fails to mention that neither he nor his attorney general will have to lift a finger to accomplish the same goal. Because the refusal of California’s governor and attorney general to defend Proposition 8 — their state’s counterpart to Virginia’s marriage law — and the Supreme Court’s punt on the issue has paved the way for a phalanx of elites in the academy, legal profession, and media to impose same-sex marriage in Virginia against the expressed will of the people.
The high court gutted sections of the federal Defense of Marriage Act (DOMA) — and might have uttered contempt for California’s marriage amendment as well. But an “odd-couple” majority of justices was perfectly happy to exploit the refusal of state officials to defend their constitution in court. On the narrow procedural grounds of “standing,” the court invalidated the defense of Prop 8 by the referendum’s sponsors, letting stand a lower-court ruling that axed the 2008 ballot initiative.
That non-decision not only disenfranchised California voters but also nullified the ballot initiative process. Justice Kennedy, no friend of conventional family law, conceded in his Hollingsworth dissent that the abdication of state officials was “an injury the Court now leaves unremedied.”
The path is wide open for McAuliffe, Herring, and their allies to pull the same shenanigans in the Old Dominion. As McAuliffe promised in the wake of the court’s DOMA decree, which he praised, “there is more to be done.”
He will surely have the opportunity. Two lawsuits against the state’s constitutional marriage provision have already been filed in federal court by three same-sex couples living in the commonwealth. The second suit has been joined by the American Civil Liberties Union and its Virginia chapter, the Lambda Legal Defense Fund, and a national law firm, Jenner & Block. In other words, a well-funded lobby has lined up its biggest guns aimed at inverting the marital institution so that it fully serves the desires of adults, not the needs of children.