Here is an email I got from Delegate Bob Marshall on Friday.
Thanks to your good efforts Delegate Cole’s HR 566 passed 65-32 last night in modified form by authorizing the Speaker to act on behalf of the House of Delegates to defend Virginia’s Constitution or statutes in cases of dereliction by the Governor or Attorney General.
The provisions of HR 566 mandating that the Speaker go to court were replaced by language granting the Speaker the authority to go to court on behalf of the House of Delegates specifically in the areas of Marriage, Medicaid and Right to Work. A generic provision was also included which gave the Speaker the authority to go to court in cases not enumerated where the Governor or Attorney General attack state laws or fail to defend them.
In the case of marriage, HR 566 included a provision authorizing the Speaker to go to state court to remove Attorney General Mark Herring from the Bostic case where Mr. Herring has sided with plaintiffs in attacking the constitutionality of Virginia’s 2006 voter approved one-man, one-woman Marriage Amendment to the VIrginia Constitution.
While HR 566 authorizes the Speaker to appoint counsel for litigation, it does not address the question of compensation for legal representation. So, counsel could be appointed pro bono, privately paid or compensated with general operating funds appropriated for the House of Delegates.
The US Supreme Court has recognized the constitutional and legal prerogative of legislative bodies to defend statutes.
In INS v. Chadha (462 U. S. 919 from 1983) where the practice of a one House of Congress veto of Executive actions was challenged, the Court said, “We have long held that Congress is the proper party to defend the validity of a statute when an agency of government, as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute is inapplicable or unconstitutional. See Cheng Fan Kwok v. INS, 392 U.S. at 210, n. 9; United States v. Lovett, 328 U.S. 303 (1946).”
The situation described in by the US Supreme Court in INS v. Chadha is precisely the circumstance of Attorney General Mark Herring who is attacking Virginia’s Marriage Constitution Amendment on behalf of plaintiffs in Bostic v. Rainey where plaintiffs seek to have Virginia’s one-man, eon-woman Marriage Amendment declared unconstitutional.
Please contact Speaker Bill Howell and urge that he proceed to secure counsel to go to Virginia state court to have Mark Herring removed from Bostic v. Rainey, and also obtain counsel to defend Virginia’s Marriage Amendment in federal court.
Speaker Howell maybe contacted at (804) 698-1028 or firstname.lastname@example.org.
Thank you for your continued help!
Delegate Bob Marshall