Virginia’s Philosophical Crossroads

Judge-Arenda-Wright-Allen-Virginia

Judge Arenda Wright Allen

Standing before a trim, white, clapboard house off Lafayette Boulevard in Norfolk last week, friends and supporters of gay rights cheered loudly as two same sex couples approached a front-yard podium to celebrate their legal victory in having Virginia’s gay marriage ban overturned.

The night before, U.S. District Judge Arenda Wright Allen, citing Abraham Lincoln and the unfairness of the state’s previous ban on interracial marriage, had declared Virginia’s ban unconstitutional.

It had been supported by the state’s conservatives and also by 57 percent of voters who approved a constitutional amendment in 2006 declaring marriage as only for men and women. Popular opinion, however, appears to have shifted

It was an historic moment on a par with federal courts overturning racial segregation and other blunt violations of human rights. Seventeen states now allow gay marriage and a host of lawsuits tend to push overturning bans. Virginia is the first Southern state to do so.

Immediately, hard-right politicians such as Prince William County’s Bob Marshall called for the judge’s impeachment just as some demanded the ouster of the new state Attorney General, Mark Herring, for, correctly, refusing to defend the marriage ban.

The situation represents a huge shift in philosophy for the state. For years, Virginia has been dominated by conservative thinking that is enormously contradictory.

As Richmond Times Dispatch columnist Jeff Schapiro points out this morning, the tension is between promoting limited government and individual freedom in some areas (little regulation of business and politicians) and badly suppressing individual rights in cases such as marriage and abortion.

Just as history was being made in Norfolk federal court, the General Assembly was putting the finishing touches on useless new rules that do next to nothing to police Virginia’s incredibly lax governance of gift giving and political donations.

This comes after the state’s reputation was badly stained by the first-ever indictment of a former governor (Robert F. McDonnell) on federal corruption charges. So much for “the Virginia way” that touts Thomas Jefferson and the entire cadre for freedom.

I have always been frustrated by the state’s bi-polar attitudes about individual rights. Not a Virginian by birth, I was glad to leave the state in 1983 after reporting from it for about eight years. I was sick and tired of its genuflecting before big business on environment and labor issues. Little-regulated Big Business, after all, had given Virginians such presents the Kepone ecological disaster.

Years later, I was passing through Virginia from New York driving from New York to visit my parents in North Carolina. We stopped at a Denny’s and were told by a waitress that we could not order our cheeseburgers medium rare because that’s what the legislature had ruled. More recently, I ended up shelling out a few hundred bucks because my daughter needed new contact lenses and state rules require unneeded yearly optical exams. Apparently that’s due to lobbying by the state eye-care industry.

The philosophical contradictions are finally catching up. Even though proponents of gay rights at the Norfolk press conference made a big deal about Virginia being the first “southern” state to confront ending the gay marriage ban, I am not so sure the state is really “Southern” any more.

Social right conservatives have taken drubbings. Kenneth Cuccinelli lost his bid for governor. Mark Obenshain, who once wanted to require any woman who miscarried a child to have to report it to police, narrowly lost his race for attorney general. (What’s his name) Jackson, a true crazy, lost his race for lieutenant governor.

Conservatives, meanwhile, are trying to reinvent themselves. True, some are screaming death to anyone who disagrees with them, sort of like the queen in “Alice in Wonderland.” Others are trying to find new issues to distance themselves from what is now a sure political loser – hard-right social issues.

Although some may not have been social conservatives, some right-wing types are trying to reset themselves as “conservatives” for smart growth, which is another way of saying central planning of land use development. That’s puzzling because if you are really free market, shouldn’t you let its “magic” direct planning? Of course, if you do, you end up with something like Houston, which, forgive the pun, is a bit of an abortion.

Others are scrambling to discover new issues, such as recruiting business, reforming education, whatever. At the same time, they are straining to protect the status quo, such as ensuring that Virginia keeps its weak ethics laws.

They will lose because the handwriting is on the wall. Judge Wright Allen has helped script it.

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50 responses to “Virginia’s Philosophical Crossroads

  1. re: ” We stopped at a Denny’s and were told by a waitress that we could not order out cheeseburger medium rare because that’s what the legislature had ruled. More recently, I ended up shelling out a few hundred bucks because my daughter needed new contact lenses and state rules require unneeded yearly optical exams. Apparently that’s due to lobbying by the state eye care industry.”

    you sound just like a right-winger, Peter!

    😉

    I don’t think people of the same sex have any more “right” to marry than say 4 people who say they want to be “married”

    I think the law is purely arbitrary on that aspect but what the Constitution says is that if you ARE going to have an arbitrary rule that it must be applied equally and you cannot differentiate on gender or race.

    you can attribute this whole deal to the equal rights movements – first for blacks and women and now for marriage… it all flows from the same Constitution and even though I find the idea of two of the same sex engaging in some physical acts that I just cannot quite get totally past.. I do remember back a few years when many people in Va thought it was akin to bestiality for two of opposite color to cohabitate so we move on – live and let live and treat others like you would like to be treated and apparently that’s what has been taught to our kids – because now that they’ve grown up – they are the most tolerant on this.

    I’ve had my fill of the right wing these days …. they remind me a lot of the Virginians I knew back during Massive Resistance when dogs and fire hoses and lynchings were used on those who wanted equal rights…

  2. Maybe I am a closet Libertarian!

    At least I don’t wrap myself in the flag, TJ, James Madison, Patrick Henry and tri-cornered hats and talk about the “Founders” while stamping out individual rights like Josef Stalin!

    • I think most of us get a let irate when we are confronted with rules we did not expect and don’t understand or totally agree with…

      I know I feel that way every time a cop stops me or I get a tax bill in the mail that pays for stuff I do not agree with.

      but there is supposed to be some kid of transition point between adolescence and adult that some libertarian/right wing types never made..

      For instance, you did not join up with a bunch anarchists as a result of not “getting your way” over a burger.. you grump and you move on… and if enough people don’t like it – change will eventually come about ; you don’t need to visit the next gun show to stock up for the coming “watering of the tree of Liberty” .. and all that ROT!

  3. Water the tree of liberty? I am stealing that brilliant phrase!

    • You’re a little late Peter:

      ” The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.”

      Thomas Jefferson

      this is standard fare one the menu of most Tea Party groups..

      • Good old Thomas Jefferson, America’s first chickenhawk.

        • Too true. Meanwhile, Virginia’s greatest Revolutionary War hero – the man who led the troops every hour of every day of the Revolution had this to say:

          “My first wish is to see this plague of mankind, war, banished from the earth.”

          General Washington

  4. Damn! I thought it was a larryg original.

  5. U.S. District Judge Arenda Wright Allen cites the United States Constitution for the proposition that “All Men are created equal.” I’ve seen a state SOL question that asked which fundamental American document contains that statement. The Obama-appointed judge doesn’t know the difference between the Constitution and the Declaration of Independence. Her clerks didn’t know. How ignorant can one be? Yet she’s probably not even embarrassed.

    It’s a good thing for the Gay marriage effort there are cases pending in other states. I’d be scared stiff to rely on the Virginia opinion. Leading with stupidity is not good.

    The General Assembly should start the process to repeal the constitutional amendment defining marriage as between one male and one female.

    As much as I think the judge’s Constitutional interpretation is not worthy of a high school student, I am excited that it opens the door for striking down the barriers against polygamy. http://www.cnn.com/2013/12/14/justice/utah-polygamy-law/index.html That one will freak the left. But arbitrary is arbitrary. And freedom to marry is freedom to marry.

    • TMT – you’re a lawyer right?

      I’m quite sure you are familiar with the Equal Protection clause of the US Constitution – are you not?

      http://en.wikipedia.org/wiki/Equal_Protection_Clause

      why did you ignore this in your comment and portray things as if this is not the case?

      shame on you.

      • General Washington had a good quote for leftists who now try to defend Judge Allen’s error in claiming ‘All Men were created equal’ as being found in the US Constitution:

        “It is better to offer no excuse than a bad one.”

        • characterizing the majority of the Federal Court System as well as the SCOTUS – as “leftist” has a certain right-wing panache to it though.

          when one characterizes in that way – you basically self-identify yourself as being to the right of judges appointed by Reagan, Clinton and Bush but you blame all of your discontent on one POTUS – Obama.

          which is a bit interesting for those who also believe in heavy government influence in things like transportation and land-use and social issues like abortion and marriage.

          we have lots of critics and govt and Obama haters these days – all manner of them as diverse as the sheer number and diversity of critter types in the bar scene from star wars.

          they all line up in opposition … to something.. they don’t like but even among themselves they cannot agree on specifics of what they dislike much less agree on solutions… they’ve just become “opponents” .

          it’s not that we cannot reach compromises – it’s that we refuse to.

          it’s becomes an endless futile game of “wait until our guys get elected and take over”.

    • Right, it’s going to drive leftists crazy. And exhibit A is from your own story from Russell Moore of that bastion of radical leftist thought the Southern Baptist Convention.

  6. I reject outright the notion that this means Virginia is no longer the South. I’ve been hearing all my life about the New South and maybe it’s finally, actually here. And God bless Virginia if it can be the capital.

    I was born and raised in Virginia, and I refuse to accept that my anti-racism, pro-civil rights and pro-choice attitudes somehow weren’t grown in southern soil. I love the South…I love its music and its storytelling and its food and its ridiculous pageantry, and I’ve loved them while having to wince at its history of treason and hostility towards minorities be they racial, sexual or religious. If we’re entering an age where I can have all the things I love while shedding all the things that make me shudder then I’m happy to stay here.

    If Virginia can find a way to mix the longstanding pomp of Southern marriages with the new demand from gay Southerners then we will certainly become an economic powerhouse.

  7. I’m not arguing that Virginia is no longer “southern” but having worked here off and on since 1973 and lived in a state deeper south, I think one can argue honestly that it’s a lot less so than before, certainly in Northern Virginia, which is the most important part of the state politically and economically. It used to be Richmond, but that ended years ago. I left Virginia in 1983 and returned to live in 2000 and was stunned at the changes.

  8. Larry, in 1971, the Minnesota Supreme Court decided the case of Baker v. Nelson, 191 N.W.2d 185, which was a constitutional challenge to Minnesota’s statute limiting marriage to one male and one female and that barred gay marriage. The state court rejected the claim that the statute violated the Equal Protection Clause of the U.S. Constitution. That decision was appealed to the SCOTUS, which, in turn, dismissed the appeal for “for want of a substantial federal question.” The case was before SCOTUS on direct appeal (not discretionary appeal) so the SCOTUS had to decide the case. It did. It decided the appeal did not raise a substantial (bona fide) federal question. There were no merits to the claim that a state bar against gay marriage (while allowing straight marriage) violated the Equal Protection Clause. The Baker case, therefore, became binding precedent on all federal courts throughout the United States. A number of state and federal courts followed the decision, but some creative judges, including Obama’s wizard judge in Virginia (who doesn’t know the difference between the Declaration of Independence and the Constitution) wrote “summary dispositions [like Baker] may lose their precedential value … ‘when doctrinal developments indicate otherwise.'” She did cite to a couple of other cases where judges had concluded otherwise. Interestingly, the California court that struck down Proposition 8 didn’t even mention the Baker case.

    Precedent can be overturned, but only on a reasoned basis. Obama’s wizard judge sure didn’t provide such reasoning. More “and magic happened.”

    What happened is that public opinion changed. Hell, my views on gay marriage have changed over time. But the Constitution was not intended to depend on public opinion. If it does, it provides very little protection of freedom.

    The Virginia General Assembly should work to change the law.

    • TMT – this has nothing to do with Obama except in the minds of partisan zealots.

      None other than SCOTUS with bush-appointed justices set the precedent and in doing so – spelled doomed for all State rules that violate the SCOTUS decision.

      when you hammer judges for making mistakes about the Equal Protection clause…(which is not true in the first place) and then turn around and say they are morons because Obama appointed them.. and you similarly ignore all the other judges appointed by other POTUS –

      what is your intent?

      what are you saying more than you hate Obama?

  9. TMT,

    SCOTUS backed slavery for years, too, before changing

    • Peter, the 13th Amendment outlawed slavery. Until it was adopted, slavery was permissible in the United States. The Emancipation Proclamation did not outlaw slavery, but only freed slaves in states in rebellion against the US. It took a constitutional amendment to eliminate slavery.

      I am not arguing that SCOTUS cannot ever change and reverse precedent. But it generally does so with careful and reasoned discussion and analysis. Until then, lower courts are bound to follow precedent. An opinion by a judge who doesn’t know the difference between the Declaration of Independence and the Constitution hardly supplies the analysis necessary to accomplish this task. If you wrote an op-ed or a book that made the statement by Obama’s judge, wouldn’t you be mortified?

      A judge may distinguish prior cases. But when SCOTUS says claim that state law barring gay marriage violates the Equal Protection Clause fails to raise a substantial federal question, it’s pretty darn hard to distinguish the Baker case. I’m not arguing its the right policy decision. It looks to me as if the judge just decided she didn’t like the result and ignored the law and the Constitution.

      Larry, even the Second Circuit in striking DOMA distinguished Baker as being applicable to state marriage law, while DOMA was a federal statute. Look at the difference between state liquor laws and the 18th and 21st Amendments to the Constitution. Despite repeal of national prohibition and the Volstead Act, there are dry areas in the United States. Congress could pass a statute reinstating the Volstead Act; see it struck down as unconstitutional; and find state and local laws prohibiting the sale of alc0hol continue to be valid.

      Changing public opinion should result in changed laws, but the Constitution should not depend on the direction the wind blows.

      • re:

        ” I am not arguing that SCOTUS cannot ever change and reverse precedent. But it generally does so with careful and reasoned discussion and analysis.”

        re: ” Changing public opinion should result in changed laws, but the Constitution should not depend on the direction the wind blows”

        which is it? are you saying that in this issue, the decision was, in your view, not “reasoned”?

        “Until then, lower courts are bound to follow precedent. An opinion by a judge who doesn’t know the difference between the Declaration of Independence and the Constitution hardly supplies the analysis necessary to accomplish this task. If you wrote an op-ed or a book that made the statement by Obama’s judge, wouldn’t you be mortified?”

        she mispoke but it’s not like there is no Equal Clause in the Constitution.. she just misspoke on which one.. why in the world doe this become your central premise for this judge over everything else she had in her opinion?

        “A judge may distinguish prior cases. But when SCOTUS says claim that state law barring gay marriage violates the Equal Protection Clause fails to raise a substantial federal question, it’s pretty darn hard to distinguish the Baker case. I’m not arguing its the right policy decision. It looks to me as if the judge just decided she didn’t like the result and ignored the law and the Constitution.”

        they are not allowed to re-visit the issue like they did with Civil Rights?

        “Larry, even the Second Circuit in striking DOMA distinguished Baker as being applicable to state marriage law, while DOMA was a federal statute. Look at the difference between state liquor laws and the 18th and 21st Amendments to the Constitution. Despite repeal of national prohibition and the Volstead Act, there are dry areas in the United States. Congress could pass a statute reinstating the Volstead Act; see it struck down as unconstitutional; and find state and local laws prohibiting the sale of alc0hol continue to be valid.”

        some state laws are allowed to be different, some are not especially if they specifically violate the US Constitution and the Equal Protection clause.

        do you think the current SCOTUS agrees with your position and will uphold your assertion?

        I’m tempted to say this sounds like Va with the Loving decision.. but won’t.

  10. TMT – didn’t things change when the Bush-appointed Roberts Court ruled DOMA unconstitutional?

    why do you blame Obama for this and what is now following as a direct result?

    do you think all those other states overturned their laws because of Obama-appointed judges?

    where is your objectivity here?

    • Larry, courts are supposed to write with sharp pointed pens. You want to use a paint brush. Striking a federal statute does not have a direct impact on state law. See my discussion of Prohibition and state liquor laws.

      The Utah federal judge who struck that state’s marriage laws was an Obama appointee to the bench. The Oklahoma judge who struck that state’s law was appointed by Bill Clinton.

      • re: ” The Utah federal judge who struck that state’s marriage laws was an Obama appointee to the bench. The Oklahoma judge who struck that state’s law was appointed by Bill Clinton”

        how about the others?

        are we picking and choosing here according to our own views?

  11. Peter –
    “Of course, if you do, you end up with something like Houston, which, forgive the pun, is a bit of an abortion.”

    First, I do NOT understand the pun. Second, on the one hand you are regaling against government regulations (like your not being able to have a medium-rare hamburger) and then you (apparently) like/love zoning, land-use laws and the like. I’m a bit confused. I went from Portland which has STRICT land-use laws to Houston which is a lot more relaxed and for me (and I know it’s not just me) relaxed is much better.

    Third, this blog (to me) has taken a sharp, sharp turn to the left. It’s Jim’s blog, he can do what he pleases. However, it is losing my interest. I will continue to stop in now and then, but as lose interest in something … no fears, I’m sure there will be lots of people on the left who find it interesting.

    • Accurate – we want BOTH .. ALL views here.. strongly supported but sans the tiresome personal attacks…seen these days in many other blogs.

      we have ..now.. a more diverse set of commenters.. in my view… and I consider that a good thing for all of us understanding viewpoints we may ot fully agree with.

      as long as we can stay on point – why not participate?

      surely you don’t want a blog that only supports your own biases do you?

      I mean.. what fun is that?

      😉

  12. Accurate,
    If you think this blog is taking a sharp turn to the left, that is your problem. I blog here and that tends to be my view. No apologies if you don’t like it.
    Jim Bacon blogs constantly and it is his entity, but I think Jim agrees that censoring posts to make it more conservative would be wrong. I honestly respect Jim for welcoming many points of view, including yours.

    • Peter –
      My problem?? Not really, my opinion, yup. I understand your view, no problem, if it’s authored by you, I pretty much know what to expect and I never asked for (or expected) an apology (not sure where that came from).

      I’m not asking/suggesting that Jim censor posts, I’m merely expressing what has/is happening to this blog in my humble opinion. As I stated before, it’s Jim’s blog, whatever he says/does is as it goes.

      Finally, I asked a couple of questions that you didn’t answer.

  13. One thing about being a Democratic appointee. Judge Wright Allen was confirmed by the U.S. Senate with a 96-0 vote. I don’t know what happened to the other four but one can safely assume that her nomination was supported by the Republican Party.

    • the whole idea that people want to make this partisan is totally bogus.

      times are changing. both Democrats and Republicans are involved in that change.

      people on the far right who are usually Republican are, as they have been in prior similar issues – opposed.

      it’s fine to be opposed on principals. it’s not fine to make it a partisan issue.

    • Still doesn’t mean she’s competent. Not knowing the difference between the Declaration of Independence and the Constitution is pretty significant for a federal judge. If you wrote the same answer the judge gave on SOL, you got the question wrong. I guess we have not gone far from Senator Roman Hruska’s infamous remarks about Judge Harold Carswell, “So what if he is mediocre? There are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they? We can’t have all Brandeises, Cardozos, and Frankfurters and stuff like that there.”

      Larry, the vast majority of judges in the United States, both federal and state, have followed Baker on state barriers to gay marriage. That’s what is supposed to happen in an Anglo-American judicial system. If Baker is to be reversed, the Supreme Court should do it. If we don’t hold to that standard and SCOTUS does reverse Baker, what is to prevent other lower court judges from refusing to follow SCOTUS?

      Judges often apply laws that they don’t personally like. I was lectured severely twice by the same state court judge in Johnson County, Iowa for twice making an argument that a valid utility tariff had the effect of law. The judge told me he didn’t want me making that argument, especially the second time. He thought it was unfair and hoped I would stay out of his courtroom in the future. But he followed the case law. Would prefer a judge who says, “I don’t care what SCOTUS has said about utility tariffs or what the Iowa supreme court has said, I think treating the tariff as if it were a statute of the Iowa legislature is invalid when it goes against a consumer, especially when the consumer has no knowledge of what the tariff says”? Or, “I don’t care that SCOTUS has said race or gender is a suspect classification. The world has changed, so I won’t give a state law drawing distinctions based on race/gender strict scrutiny.”

      You stated, “some state laws are allowed to be different, some are not especially if they specifically violate the US Constitution and the Equal Protection clause.” Correct. But SCOTUS said state marriage laws that do not permit gay people to marry do not violate the Equal Protection Clause.” That’s what Baker held. It doesn’t mean states cannot change their laws. Many have. Others will likely do the same. That’s what legislatures do. And while many voters don’t like the new laws, they tend to respect them a helluva lot more than when a judge turns a court ruling on its head.

      • re: ” But SCOTUS said state marriage laws that do not permit gay people to marry do not violate the Equal Protection Clause.” That’s what Baker held. It doesn’t mean states cannot change their laws. Many have. Others will likely do the same. That’s what legislatures do. And while many voters don’t like the new laws, they tend to respect them a helluva lot more than when a judge turns a court ruling on its head.”

        TMT – we are on a continuum. change happens. You’re citing an earlier decision that has since then been rendered not relevant.

        you’re basically opposing change here and you’re doing it by using dated technical arguments that have since become submerged by more recent decisions.

        isn’t this a little like arguing the opposition side in the Loving trial all over again?

        • LarryG:

          You really are struggling with this. Not all courts are created equal. The US Supreme Court has ruled that state bans on gay marriage are not a federal problem. That was in 1971. Since then, the court has struck down a FEDERAL statute (DOMA) and refused to hear an appeal of a California court’s decision in overturning that state’s gay marriage ban.

          Do you see a pattern? The US Supreme Court is saying it’s not a federal question.

          All the people (like Mark Herring) who assume the US Supreme Court will strike down Virginia’s Marshall-Newman Amendment ought to think again. While popular sentiment may be shifting there is no basis to believe that the Supreme Court will reverse precedent.

          Popular sentiment was also against the US Supreme Court in Citizens United v the FEC. However, the court ruled with what they saw as the Constitution rather than popular opinion.

          The smart move here, both politically and legally, is to repeal Marshall-Newman. It is a politically smart move since it would isolate the state’s right wing politicians into a position of either allowing the people a chance to reconsider or banning further public debate. It is a legally smart move because it provides a hedge against the US Supreme Court. Nobody alleges that the US Supreme Court has banned same sex marriage – only that it has held that the question is not a federal matter.

          • I had posted this earlier

            http://en.wikipedia.org/wiki/Judicial_appointment_history_for_United_States_federal_courts

            Is the “struggle” here that all these appointed Federal judges are out of touch with the SCOTUS on this issue?

            what I derive from all of this – is that we are reassessing our collective views about what rights people do (or don’t) have.. not in too different a way than we did with the Civil Rights issues or before that the Dred Scott”

            When the SCOTUS rules on rights of United States citizens, involving the equal rights clause – how far can we stretch the idea that is does not apply to the States?

            or let’s turn this around – does anyone think the SCOTUS is going to overrule the Federal District Courts on this and say that DOMA and same-sex marriage are not the same thing?

          • Virginia’s General Assembly should change the law to permit both gay and polygamous marriages; to allow religious organizations not to recognize them; and to allow bakers to refuse to bake a wedding cake for a gay wedding or a polygamous one. Civil marriage can be different from religious marriage.

            But it’s simply wrong for a lower court judge to decide that, despite the Supreme Court holding a state ban on gay marriage does not raise a federal question of law, he/she now thinks it does. Judges cannot override higher courts.

          • re: ” Judges cannot override higher courts.”

            how do cases that are ultimately determined to involve un-Constitutional actions – start to get overturned?

            how do they get to the SCOTUS to get the question itself addressed unless they start in the lower courts?

  14. And for those who like to blame change on partisan politics and those nasty “leftists”, .. a little fact-based info:

    http://en.wikipedia.org/wiki/Judicial_appointment_history_for_United_States_federal_courts

    I know.. it’s a real buzz killer…

  15. “… for, correctly, refusing to defend the marriage ban.”

    “for, correctly, refusing to do his job.” is what this sentence should read.

    There is a basic problem here, not the debate over same sex marriage, or whatever else. The serious problem here is the avoidance of using the proper established process to make changes.

    If there is a need to short circuit the legislative process to make this change then I question the validity of the change being proposed. By taking this approach, it says a few here are trying to ram through their position on an issue for which they do not, apparently, have the necessary support or skills to promote it the proper way.

    Anyone thinking this end run approach is good, pause for a minute and change the focus from in this to any other topic near and dear to your heart. Would you accept someone with the opposing viewpoint using these practices to overturn your precious position?

    Do not lump all that are outraged by this into one bucket, some may oppose the marriage changes part of this debate, others may oppose the tactics used to do it.

    Why is is necessary to make this change in such a non-standard way? Does it not have real support?

    • my big problem here is the double standard in play:

      “Cuccinelli won’t defend school take-over law championed by McDonnell”

      so the same right-leaning folks who decry Herring’s stance did what before when the same thing happened?

      where is the consistency .. the righteousness of their angst?

      if you want to adopt a political position based on your principles – fine.

      but when your principles shift according to the circumstances.. not good.

      if we go back to Loving… we had this same issue.. with the State courts ruling one way and the Federal courts a different way and what did Virginia do?

      • You agree this non-standard approach is not correct, great.

        Hold that thought and maybe do something about it.

        I also agree the case you point out is exactly the same and it should not have happened ….

        The case is not so important here, it is the approach these people are using that is the real debate.

        • if you do not oppose it on a consistent basis though – even for things you don’t specifically care about – trying to bring it up later after you ignored it previously is prone to failure – especially when Cucinelli billed himself as an advocate for precise and proper legal actions.

          it’s hypocritical, in fact, to talk about impeaching Herring when the same folks did not want to impeach Cucinelli for the same exact “crime”.

          I would say the only folks who have real justification here are the folks who did, in fact, openly call for Cucinelli’s impeachment also.

          All others are governed by their politics.

    • the principle I support – no matter who the judges are or who appointed them or what the Virginia “way” is or is not…

      or what Herring did and did not do or what Cucinelli did or did not do..

      is the right of citizens to have the same rights… without regard to gender, race, heritage, etc…

      anything that continues to exist that is discriminatory is not entitled to exist forever – eventually if it’s wrong – it gets rectified.

      the bigger question is if one opposes same-sex marriage – what is your solution that does not discriminate? If you don’t have an answer – you ultimately lose… it just becomes a matter of how and whether you like or dislike how the “how” happened.

      I personally am not comfortable with the concept of same-sex marriage but my principles won’t allow be to make an exception to the equal rights clause.

      let’s assume that we don’t want this – what’s the legitimate and principled Constitutional basis for denying it ?

      • “….the principle I support – no matter who the judges are or who appointed them or what the Virginia “way” is or is not…

        or what Herring did and did not do or what Cucinelli did or did not do..

        is the right of citizens to have the same rights… without regard to gender, race, heritage, etc…”

        OK, fix those things that are near and dear to you the right [correct] way. Cheating on an exam to get a job is not right no matter how much you deserve to have that job.

        Research what the proper way to make change is and then do it. The result will have much more credibility than just trying to ram it through by any means possible legitimate or not. Do your cause justice and make change the right way, your cause will be stronger as a result.

  16. re: ” OK, fix those things that are near and dear to you the right [correct] way. Cheating on an exam to get a job is not right no matter how much you deserve to have that job.”

    I did not break them. If the principle is ignored for a GOP AG.. it totally undermines the claim that it’s wrong now and to “fix” it -now.

    “Research what the proper way to make change is and then do it. The result will have much more credibility than just trying to ram it through by any means possible legitimate or not. Do your cause justice and make change the right way, your cause will be stronger as a result.”

    change is messy.. but it’s inevitable. It does not always follow “rules” that are themselves both arbitrary and not consistently applied – especially by those who say the rules cannot be violated – but they ignore them sometimes.

    if you want a rule and you believe it should not be violated -you need to oppose any/all violations of it – whenever they occur or else you undermine the validity of that rule – yourself – for failing to defend it – all the time.

    this is the difference between politics and principles.

    politics is when you claim rule violations – only when your ox is gored and you ignore it when folks you are politically aligned with – ignore it.

    there is a neverending contest between those who want rules and those who want justice.

    the rules get changed not by those who want justice but by those who did not defend it unless it suited their political views.

    • I think we are saying the same thing. I do not disagree with your observation about a double standard. We all (you and I included) need to fix it and constantly strive to work a proper process.

      • To a degree but we disagree also.

        I think if the AG believes a law is un-Constitutional, he/she have a quandary.

        He’s sworn to uphold the Constitution – to defend it.. but the Constitution changes and when change is underway – what is his/her proper role when the law and Constitution appear to disagree?

        is his/her job to defend the Law or the Constitution?

        • My gut tells me, defend the law and fix the constitution the same way it was broken if they feel it is broken. I am sure someone did a check if the law was constitutional prior to putting it up for votes, no?

          Don’t court appointed defense attys defend people they may think are guilty? I think they do it because it is their duty to do so. Same applies here.

          Back to the point, there are proper ways to make these changes for a reason, it makes the changes more solid and enduring.

          • re: ” My gut tells me, defend the law and fix the constitution the same way it was broken if they feel it is broken. I am sure someone did a check if the law was constitutional prior to putting it up for votes, no?”

            well they check but the quality of the check and who does it may not agree with other legal views.

            “Don’t court appointed defense attys defend people they may think are guilty? I think they do it because it is their duty to do so. Same applies here.”

            Attorney’s can and do back out of cases they feel they are compromised in defending.. .. but the question you did not ask is what if a Prosecutor thinks a law is not Constitutional or legal – can he elect not to prosecute?

            “Back to the point, there are proper ways to make these changes for a reason, it makes the changes more solid and enduring.”

            I don’t think the rules are as fast and rigid as you perceive them to be as we have a long history of change – not exactly according to ‘rules’.

            for instance, just because there is a referendum.. does not mean the question on it was a valid question if that question was deemed un-constitutional.

            it’s more complicated that inviolate rules and what I’ve pointed out is that people, including prosecuters and AGs can choose to not enforce laws they think are invalid. How many prosecutors and AGs have knowingly and overtly refused to enforce Va laws on illegal sex acts?

        • Larry, you keep ignoring the fact that SCOTUS granted a stay of the Utah decision pending further appeal. It is very hard to get a stay from the Supreme Court and impossible when the argument is frivolous. In other words, the balance of the law favors the 197o’s decision that a state law banning gay marriage does not raise a substantial federal question. Judge who rule otherwise are pretty much making up the law. The Supreme Court may change its mind after considering fully briefed and argued cases. But, until then, a lower court judge should have deferred to the Baker case.

          A number of years ago, a California federal judge stayed the order to execute a condemned prisoner. SCOTUS lifted the stay, only to see the lower court judge re-impose it, which was reversed again by SCOTUS. I don’t recall how many times this back and forth occurred before SCOTUS simply forbad the California judge from issuing another stay. Clearly the lower court believed the execution would have been improper and, maybe, unconstitutional. But our legal system puts the Supreme Court at the top. Do you really want a federal judiciary deciding to ignore the Supreme Court?

          A lawyer is required to represent his/her client vigorously, but may not advance arguments against the existing law or applicable court precedent unless the attorney has a basis in law or in fact that is not frivolous.

          Rule 3.1 Meritorious Claims And Contentions
          A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

          A lawyer can argue against Baker, but must recognize and address it with something beyond “hey, times have changed.”

          The Virginia General Assembly should revise the state’s marriage laws and judges should follow the law unless and until SCOTUS changes it.

          • re: ” Do you really want a federal judiciary deciding to ignore the Supreme Court?”

            they do all the time TMT… it’s up to the SCOTUS to receive an appeal and accept it and until they do that – states can do what they please and do.

            “A lawyer is required to represent his/her client vigorously, but may not advance arguments against the existing law or applicable court precedent unless the attorney has a basis in law or in fact that is not frivolous.”

            I’m doubtful the “rules” are as strict and unyielding as asserted though. There is, for instance, a such a thing as jury nullification. A judge can also set aside a conviction or a verdict even.

            A prosecutor can refuse to charge someone with violating a law – on the books.

            “A lawyer can argue against Baker, but must recognize and address it with something beyond “hey, times have changed.””

            no more or less than what happened in Loving vs Virginia or other Civil Rights decisions.

            “The Virginia General Assembly should revise the state’s marriage laws and judges should follow the law unless and until SCOTUS changes it.”

            well that should be easy – in the House.. for sure.. and I would expect them to do something even if they think it may not be easily accepted in the Senate.

            Is there a bill ? We have a lot of Bob Marshall types in the GA, right?

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