Virginia Gov. McAuliffe Refuses Special Counsel Appointment to Defend Anti-Gay Law

Gov. Terry McAuliffe (D) on Monday refused to appoint a special counsel to defend a state law prohibiting recognition of any form of same-sex relationship in the upcoming case of Bostic v. Rainey, in which two same-sex couples from the Hampton Roads area are suing to obtain marriage licenses. In a letter responding to a request from members of the House of Delegates to appoint a special counsel, McAuliffe declined to do so, citing that the defendants in the case, which is scheduled to be heard in court this week, already have substantial representation.

Thumbnail image for McAuliffe.png"I share your view that the effective administration of our legal system requires zealous advocacy on all matters before the courts," McAuliffe wrote. "In the present case, Virginia's same-sex marriage ban is being vigorously and appropriately defended by the Clerk of the Court for the City of Norfolk and the Clerk of the Court for Prince William County, as well as parties appearing as amicus curiae in the case. Accordingly, I respectfully decline to appoint special counsel in this matter."

Thirty-two lawmakers - 31 Republicans and Del. Johnny Joannou (D-Portsmouth, Norfolk) - had previously written a letter to McAuliffe telling him it was his duty to defend the constitutional amendment, also known as the Marshall-Newman Amendment, that bans same-sex marriage in the state and was approved by voters, 57-43 percent, in 2006. Marshall followed up that first letter with a second bearing the names of 21 additional House Republicans. In all, 52 of the 67 Republicans signed on to Marshall's proposal.

Signatories of the letters included Del. Bob Marshall (R-Manassas Park, Prince William Co.), the original author of the ban, House Majority Leader M. Kirkland Cox (R-Colonial Heights, Chesterfield Co.), the second-highest ranking Republican in the lower chamber, and at least seven Northern Virginia lawmakers: Timothy Hugo (R-Fairfax, Prince William counties), Dave LaRock (R-Loudoun, Clarke, Frederick counties), Mark Berg (R-Winchester; Frederick Co.), Tag Greason (R-Loudoun Co.), Richard Anderson (R-Prince William Co.), James LeMunyon (R-Fairfax, Loudoun counties) and Dave Albo (R-Fairfax Co.).

The lawmakers' letter was sent to McAuliffe following the announcement last Thursday by Attorney General Mark Herring (D) that the Commonwealth of Virginia will no longer argue that the amendment banning recognition of same-sex relationships is constitutional. In a press conference, Herring said he had carefully reviewed the law and found it to be unconstitutional because it discriminates against same-sex couples on the basis of sexual orientation and gender. But Herring also said that his refusal to argue the constitutionality of the law did not mean the case would not go forward, as the defendants in the case already have legal representation willing to argue in favor of upholding the ban.

In response to McAuliffe's letter, Berg, who defeated incumbent Del. Beverly Sherwood in a Republican primary last year, took to Twitter and retweeted a link from Marshall linking to the letter and commented, "Unbelievable refusal to represent VA." While it is unclear if Del. David Ramadan (R-Loudoun, Prince William counties) signed either of the letters, as some of the signatures are illegible, he retweeted a tweet by the Republican Party of Virginia talking about how signatory C. Todd Gilbert (R-Shenandoah, Page, Rappahannock, Warren counties) would deliver the GOP address blasting Mark Herring for refusing to "do his job."

Republicans in the House of Delegates are expected to vote on HB706, a bill, patroned by Gilbert, that would allow any current member of the General Assembly to intervene and defend in court a law passed by the General Assembly if the law is being challenged and the governor and attorney general choose not to defend it. The measure passed out of the House Committee on Courts of Justice on a party line vote on Friday, and is expected to be voted upon this week.