Mark Herring – “local boy” makes good

Thank God for the Millennials and all those who are not so young but who are tolerant of difference.

We should also thank “a local boy” who used to sell eggs as a kid door to door on Leesburg’s Canby Road for pennies an egg, who went on to study law, began a small practice in Leesburg, served as counsel to Lovettsville, was elected to the Loudoun County Board of Supervisors, then elected to the Virginia State Senate and finally elected state wide to become Virginia’s Attorney General.

That’s Mark Herring who decided, as our newly minted Attorney General, that treating same sex marriage differently as a state than other marriages was not equal protection of the law, and, as a result, at his direction, Virginia reversed field in pending litigation and the Courts agreed to recognize same sex marriages.

Last week, Mark sat in the U.S. Supreme Court chamber to hear oral argument on what should be the law of the land – for every state.

Mark came away optimistic that we are going to bend toward equal protection and individual liberty nation-wide.

Same sex marriage has been in dispute a long time, and is often rightly compared with the offensive intolerance once legally visited upon mixed racial couples.

The federal and state courts have almost uniformly found any state prohibition of same sex marriage to reflect a private moral view that advances no legitimate government interest, and that violates an individual’s constitutional right to marry regardless of gender.

The Supreme Court foreshadowed its disapproval of any gay marriage ban when it threw out a federal law that refused benefits to same sex couples.

On October 6, 2014, the Supreme Court refused to hear cert petitions from several “agreeable” federal circuits, thus affirming the lower court decisions, legalizing same sex marriages in our Commonwealth (Rainer v. Bostic, McQuiqq v. Bostic, Schaefer v. Bostic), also Wisconsin (Walker v. Way), Indiana (Bogan v. Baskin), Utah (Herbert v. Kitchen) and Oklahoma (Smith v. Bishop).

This is why many including Mark feel the wind is at our backs to enlarge liberties across the country rather than to allow discrimination to persist.

During the oral arguments before the Supreme Court last week, a strong objection was made to the Justices that the States had to defer to what voters in the several states wanted.  But this is a misunderstanding about the character of a constitutional right that protects the individual, by that right, against any disagreeable majority.

Another argument pressed on the Justices was that the purpose of marriage was to have children.  Of course, when a heterosexual couple seeks a marriage license, we don’t require that the couple give assurances they can have or that they want children, nor do we put any age limits on marriage.

Locally, the late Loudoun Circuit Judge Carleton Penn once wrote an opinion in a custody dispute, granting custody to a same sex couple, over the grandparents’ demand that they have custody, concluding it was the child’s “best interests” to remain with his parents.

Last week, some advocates before the Court, and some Justices as well, argued for what was “traditional” marriage.  But the counter argument was that it had also been a “traditional” practice to treat slaves and women as property and non-persons until the Court ended those discriminatory “traditions.”

It is time that the Supreme Court enlarged the liberty of gay couples, rejected another hateful “tradition,” and turned the page on this long-suffered infringement on the right to marry.