“Here sir, the people govern,” Alexander Hamilton told the New York state ratifying convention in 1788. It’s a good thing he wasn’t talking about the commonwealth of Virginia, or the future state of California.
On Thursday, Virginia’s Attorney General announced that, not only would he refuse to enforce a state constitutional provision, but that he would join a federal lawsuit seeking to strike down that law. “I believe the freedom to marry is a fundamental right, and I intend to ensure that Virginia is on the right side of history and the right side of the law,” Mark Herring announced.
Setting aside the controversy over same-sex marriage, consider the precedent here. Herring was elected as Attorney General just a few months ago. The job of a state A.G. is to enforce the laws of the state, and interpret them if that becomes necessary.
In 2006, Virginians voted overwhelmingly to amend the state constitution to define marriage as the union of one man and one woman. Some 57 percent of voters supported that change. Their intent was, and is, clear. If Herring wants to repeal the amendment, he should do so as a citizen, using the state’s constitutional process, not by suing his constituents in federal court.
The lesson is: elections matter. Unless they don’t. In this case, the election for Attorney General seems to have mattered a lot, as the one man elected to that post is now working to have the constitution of his state changed by the federal government. The election, just eight years ago, that allowed millions of Virginians to weigh in on a controversial issue apparently doesn’t matter at all.
This case mirrors a Supreme Court decision from last June. Then, the court refused to hear a defense of a California constitutional amendment that also defined marriage as the union of one man and one woman. The Court’s reasoning was that, because the state governor and Attorney General refused to defend the constitutional amendment, millions of California voters who’d supported the referendum (twice) didn’t have standing to defend it.
In California, Virginia, and other states, the people are indeed trying to govern themselves. Whether the federal government, and a select few attorneys general, will allow them to do so remains an open question.