Ken Cuccinelli, the former Republican Attorney General of Virginia, is attacking sitting Attorney General Mark Herring (D) for not defending the state’s now-defunct ban on same-sex marriage.
Cuccinelli, who served as attorney general from 2010 to 2014, criticized Herring for failing to defend the ban in order to illustrate how he believes Herring has violated his oath of office to defend the law during his nearly eight years as the commonwealth’s top cop.
In 2014, upon taking office, Herring announced he would not defend the state’s ban on same-sex marriage, saying he believed it violated the equal protection clause of the Fourteenth Amendment to the U.S. Constitution, on the grounds that marriage is a fundamental right denied to some Virginians because of their sexual orientation and gender.
But Cuccinelli says Herring should have defended the law, even if he thought it was likely to be overturned by the courts, as all existing same-sex marriage bans throughout the United States eventually were in 2015, following the U.S. Supreme Court’s decision in Obergefell v. Hodges.
“As attorney general, I had to defend gun regulations that I didn’t like, but they were legal, and they were defensible,” Cuccinelli told The Washington Times. “I did my duty, and I defended them. And Republicans and Democrats, as attorneys general, have always done that until Mark Herring.”
But Herring, said, at the time, that his predecessors did not always defend laws they disagreed with, noting that Cuccinelli chose not to defend the law creating the Opportunity Educational Institution, which was set up by legislation pushed by former Gov. Bob McDonnell (R). Under the law, the OEI was empowered to seize control of any public school that has been denied state accreditation or has received warnings about its accreditation status for three consecutive years.
Local school boards and teachers’ groups sued, claiming the institution’s powers were unconstitutional because it usurped power granted to local school boards under the Virginia Constitution. Cuccinelli declined to defend the law, citing concerns about its constitutionality and saying he believed the courts would ultimately side with the school boards. The law was later declared unconstitutional.
Similarly in 2003, former Attorney General Jerry Kilgore (R) argued in an amicus brief, along with attorneys general from 43 other states, that an attorney general is properly carrying out his constitutional duties when he seeks to invalidate a state law he believes to be unconstitutional. The case in question dealt with then-Colorado Attorney General (later, a U.S. Senator and Secretary of the Interior) Ken Salazar’s decision to challenge a Republican-led mid-decade redistricting in which members of the legislature drew new maps to effectively gerrymander Democrats out of power, and Kilgore argued that Salazar was right not to defend the law if he believed it to be unconstitutional. As Kilgore predicted, the mid-decade redistricting was ultimately declared unconstitutional by the Colorado Supreme Court.
As Herring pointed out in 2014, any criticism of his actions around the same-sex marriage law — especially by Kilgore, Cuccinelli, and other past attorneys general — would demonstrate their hypocrisy while also ignoring past precedent. Nonetheless, Republicans in the General Assembly quickly called for Herring to be impeached following his refusal to defend the law.
Since Herring’s announcement in 2014, Virginia’s statutory ban on same-sex marriage has been repealed. Earlier this year, lawmakers voted to repeal a 2006 voter-approved constitutional amendment (known as the Marshall-Newman Amendment) which is the last vestige of the same-sex marriage ban.
Should Democrats retain control of the legislature and the governorship, they would have to vote a second time to repeal the 2006 amendment next spring, after which the question of whether to repeal the now-unenforceable ban would have to be approved by Virginia voters during the 2022 election.
Cuccinelli made the comments attacking Herring in order to plug the candidacy of State Del. Jason Miyares (R-Virginia Beach), who is the GOP nominee for attorney general in November’s upcoming election. For his part, Miyares — despite attending an Equality Virginia lobbying event in 2018 — has voted against every pro-LGBTQ piece of legislation to be considered by the General Assembly.
The list of pro-LGBTQ bills Miyares has opposed since joining the legislature in 2016 include: a ban on conversion therapy, protections for transgender students in schools, hate crime protections for LGBTQ people, a ban on the gay or trans “panic” defense, a nonbinary gender marker option on Virginia driver’s licenses, the repeal of the statutory and constitutional amendments banning same-sex marriage, health insurance protections, and the Virginia Values Act, the statewide law prohibiting anti-LGBTQ discrimination in housing, employment, credit, and public accommodations.
Herring, who is running in a climate hostile to Democrats — due to the relative unpopularity of President Joe Biden — has sought to link Miyares to Cuccinelli, in order to excite and motivate Democratic-leaning voters, particularly those who view the former attorney general as a partisan ideologue with extremist views, to the polls.
“In this election, voters will have a clear and stark voice between my proven record of protecting Virginians and expanding rights and my Republican opponent who is an anti-health care, anti-LGBTQ, anti-choice, pro-NRA, Cuccinelli-style conservative,” Herring said at a July rally where he appeared with Democratic gubernatorial nominee Terry McAuliffe and Biden.
But Cuccinelli counters that it is Herring who is the extremist.
“When he was in the state Senate, he was pretty close to the middle,” Cuccinelli told the Times. “I haven’t moved anywhere, but Mark has gone way to the left to appease his radical base. So, he’s the one who has moved and is pandering, not me.”
A campaign spokesperson for Herring hit back against Cuccinelli’s assertions in a statement to the Democratic-leaning blog Blue Virginia, while also calling for Miyares to denounce the comments.
“Ken Cuccinelli’s comments to The Washington Times are disturbing to say the least, and it is equally disturbing that Jason Miyares has not denounced those comments. Virginia has moved forward to be a more inclusive, equal and welcoming commonwealth and Attorney General Herring’s historic decision to not defend an unconstitutional ban helped to make Virginia one of the best places to live and work in, no matter where you come from, what you look like, or who you love,” Madia Coleman, the communications director for the Herring campaign, said in a statement.
“Ken Cuccinelli’s regressive positions have been known for years, and yet Miyares still campaigns with and sought the endorsement of Cuccinelli because, as his votes show, he holds the same outdated, hateful beliefs. Virginia cannot and will not move backwards with Jason Miyares.”