A former U.S. attorney has called Virginia Attorney General Mark Herring's surprise announcement that he will not defend the state's gay marriage ban "impeachment material."
Virginia Attorney General Mark Herring, right, recites the oath of office during inaugural ceremonies at the Capitol in Richmond, Va., Saturday, Jan. 11, 2014. (AP/Patrick Semansky)
Joe diGenova, a former U.S. attorney for the District of Columbia, said Herring's announcement highlights a politicized selective enforcement of the law taking place at the federal level, after U.S. Attorney General Eric Holder similarly opted not to defend the Clinton-era Defense of Marriage Act.
“It's not a legal issue any more. This is a political issue and it's a big one,” diGenova said on WMAL radio in Washington Thursday. “This could be a firestorm that he and the Democrats regret. It's one thing to stake out a position on a controversial issue such as abortion. People respect you if you have a position and keep it, even if they disagree with you.”
Herring, barely two weeks into office, announced Thursday that not only would he not defend the voter-enacted state constitutional amendment defining marriage as between one man and one woman, he would fight it. He had pledged during his 2013 campaign to defend the existing law regardless of his personal views.
“What he has done, he has lied. He has just brought to mind of the American people the series of lies from the Obama administration about health care, Benghazi and other things. This is now a political question of immense proportions. That's not a small issue,” diGenova said. “This is a big legal issue. This isn't some piece of legislation. This is a constitutional amendment to the Virginia commonwealth constitution. He has now said that the will of the people, which he said he would make every good faith effort to defend, he is now going to ignore. This is impeachment material. It is also recall material.”
Herring's office filed a brief Thursday on behalf of a same-sex couple in Norfolk challenging the state constitutional amendment that was adopted by 57 percent in 2006, The Washington Post reported.
During a news conference in Richmond, Herring said, “As attorney general, I cannot and will not defend a law that violates Virginians’ fundamental constitutional rights.”
Virginia House of Delegates Speaker William Howell (R) called Herring's announcement a "dangerous precedent" to set.
“The attorney general has a constitutional and statutory obligation to enforce and defend the duly adopted laws and constitution of Virginia," Howell said. "This is not an obligation that can be taken lightly. The attorney general’s decision today demonstrates a great deal of disregard for that obligation, as well as the legislative and democratic processes by which those laws are adopted.”
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