Andrew Jackson famously never said, “One man with courage makes a majority.” Yesterday, the new Attorney General of Virginia, Mark Herring, announced that he has decided he is no longer bound to defend the Virginia Constitution which defines marriage as the union of one man and one woman. This is not courage at all, but pure hubris. After only just being declared the winner in a recount by the slimmest of margins earlier this month, Mark Herring has created a new civil right ex nihilo without any input from the legislature or existing case law. In other words, he is the self-declared majority of one–a dictator.
The Supreme Court remains silent on the question at issue and there is no basis in the laws of Virginia for Herring’s autocratic decision. The decision in Hollingsworth v. Perry declined to address the question of same-sex marriage at all and United States v. Windsor was decided based on the principle of federalism. In the latter, Justice Kennedy quoted the opinion of the First Circuit Court of Appeals saying that the Defense of Marriage Act was designed “to put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws.” In his arrogance, Mark Herring is not only putting his thumb on the scales of justice, but also in the eyes of the citizens who elected him.
Ironically, the motto of my beloved native Virginia is, “Sic semper tyrannis,” which means, “Thus always to tyrants.” The “thus” refers to the ignominious demise of Julius Caesar at the hands of the Roman Senate. Patrick Henry once famously gave a speech echoing these sentiments, “Tarquin and Caesar had each his Brutus, Charles the First his Cromwell, and George the Third [here he was interrupted by cries of 'Treason!'] and George the Third may profit by their example! If this be treason, make the most of it.”
The same may be said of Mark Herring. Fortunately, in this gentler age of the world, he needn’t fear being stabbed to death by the members of the General Assembly for his usurpation of their authority. However, we can hope that they do prevail in the courts and that Herring is obliged to do his job and uphold the laws of his state.
Both the motto and the Constitution of Virginia were originally drafted during the Revolutionary War, making the latter the oldest in the nation and the model for the founders when they drafted the U.S. Constitution several years later. The consent of the governed is the foundational principle on which our entire structure of government is premised and is the essential safeguard of our liberty. Furthermore, the Constitution of Virginia makes this explicit in Article I, Section 7: “That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.”
It defies all reason to claim that the protecting the imagined right to same-sex marriage requires elected officials to disregard the constitutional principle which protects all rights. If advocates for same-sex marriage are so assured of the justice of their cause, they should have no hesitation about bringing this matter before the people. Amending the Constitution of Virginia only requires a simple majority, so this is far easier than amending the U.S. Constitution.
Regardless of whether you agree with the teachings of the Catholic Church and the laws of Virginia regarding marriage, all should agree that this sets a dangerous precedent. Justice and truth cannot be upheld when politicians simply ignore the law. If the governor or the attorney general of a state can just choose what is and what is not a civil right, we may not always like what they decide. We will like it even less when they arbitrarily change their minds with the vicissitudes of their political fortunes. If we accept that temporary officeholders in the executive branch can decide what the laws should be absent any direction from the legislature or the courts, but instead based purely on the agitation of their supporters, the consequences will inevitably lead to the subjugation and oppression of everyone.