Is Gay Marriage a Red Herring in Virginia?

Whether Mark Herring thinks gay marriage is constitutional or not is beside the point.

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Newly inaugurated Virginia Attorney General Mark Herring said Thursday the commonwealth's ban on same-sex marriage was unconstitutional and that he, as the state's chief legal officer, will join in a lawsuit filed by two gay couples asking a federal judge to strike it down.

Herring, who had voted against the legalization of same-sex marriage while a member of the State Senate, said he now believes the Old Dominion needs to be "on the right side of law and history" by giving legal approval to same-sex relationships. He also believes, one suspects, that he should be Virginia's next governor and the he cannot accomplish the latter if he defends the former which, it should be noted, is the law.

America prospers because it is a nation of laws that are, in principle at least applied equally to each and every citizen. Not only does this idea protect our democratic institutions it safeguards against the tyranny of both the mob and the man. The law is supposed to be the servant of us all and no one man or woman is supposed to be allowed to let his or her judgment take its place.

Herring has now set his judgment, his reason and his values ahead of those of the citizens of the commonwealth who, in their wisdom, chose to see a ban on same-sex marriage enacted. He is putting his own views above the law and the state constitution that he just days ago swore to uphold to the best of his ability.

[See a collection of political cartoons on gay marriage.]

This is a difficult point to make in light of changing attitudes about such relationships. An unscientific on line poll of Washington Post readers accompanying one of the stories explaining what Herring had done had 82 percent of respondents in favor of same-sex marriage. No matter what your view on that particular issue, however, the more important question is should elected officials be required to uphold and defend those laws with which they may personally disagree?

The easy answer, the safe answer, the culturally relevant answer to that question is probably: "No." Unfortunately it is also the wrong answer for it leaves the door open for all kinds of mischief. Today, it's about a law on which you and the attorney general – or the governor or a state judge – agree. Tomorrow it may not be. Tomorrow it may be a law that deprives you of your liberty or your property or your right to a speedy and fair trial or to the presumption of innocence – a law that only applies to you and a selected group of citizens which is unsound and wrong but which a majority of the electorate supports.

We elect politicians to use their judgment but also to follow the law. Herring, whose flip-flop didn't occur until after the campaign was over, is substituting a political calculation (and couching it in constitutional terms) for a legal one. Without being overly dramatic this is dangerous for democracy. The law, agree with it or not, must be the law or we will soon find ourselves ruled by the passions of the people at any given movement. At that point liberty becomes not just a fig lead but a fiction.

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