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RECORD NOS. 14-1167(L), 14-1169, 14-1173 In The

United States Court of Appeals

For The Fourth Circuit

TIMOTHY B. BOSTIC; TONY C. LONDON; CAROL SCHALL; MARY TOWNLEY,

Plaintiffs Appellees,

CHRISTY BERGHOFF, on behalf of themselves and all others similarly situated; JOANNE HARRIS, on behalf of themselves and all others similarly situated; JESSICA DUFF, on behalf of themselves and all others similarly situated; VICTORIA KIDD, on behalf of themselves and all others similarly situated,
Intervenors,

v.

GEORGE E. SCHAEFER, III, in his official capacity as the Clerk of Court for Norfolk Circuit Court; JANET M. RAINEY, in her official capacity as State Registrar of Vital Records,
Defendants Appellants,

MICHLE MCQUIGG,
Intervenor/Defendant Appellant,

and

ROBERT F. MCDONNELL, in his official capacity as Governor of Virginia; KENNETH T. CUCCINELLI, II, in his official capacity as Attorney General of Virginia,
Defendants,

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA AT NORFOLK

BRIEF OF AMICI CURIAE VIRGINIA CONSTITUTIONAL LAW PROFESSORS, SUPPORTING APPELLEES AND AFFIRMANCE
L. Steven Emmert (VSB No. 22334) SYKES, BOURDON, AHERN & LEVY, P.C. 281 Independence Boulevard, 5th Floor Virginia Beach, Virginia 23462 (757) 499-8971 Counsel for Amici Curiae THE LEX GROUP 1108 East Main Street Suite 1400 Richmond, VA 23219
(804) 644-4419 (800) 856-4419 Fax: (804) 644-3660 www.thelexgroup.com

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TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................................................. ii RULE 29(c)(5) CERTIFICATION..........................................................2 PRELIMINARY STATEMENT ..............................................................2 ARGUMENT ..........................................................................................4 A. B. C. A state attorney general may challenge a provision of state law that violates the Constitution..........................5 Virginia has previously recognized this discretion ........... 8 Attorney General Herring has that authority and obligation here ....................................................................9

CONCLUSION ..................................................................................... 12 CERTIFICATE OF COMPLIANCE CERTIFICATE OF FILING AND SERVICE

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TABLE OF AUTHORITIES Page(s) CASES Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958) ...................................................3 Falwell v. Miller, 203 F. Supp. 2d 624 (W.D. Va. 2002) ....................................... 11 Florida ex rel. Landis v. S.H. Kress Co., 155 So. 823 (1934) ........................................................................7 Fund Mgr. v. Corbin, 778 P.2d 1244 (Ariz. App. 1988) ..................................................7 Gilmore v. Landsidle, 478 S.E.2d 307 (1996)................................................................ 11 Hansen v. Barlow, 456 P.2d 177 (Utah 1969) ............................................................ 8 Illinois v. Pollution Control Bd., 404 N.E.2d 352 (Ill. App. 1980)...................................................7 In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998)...................................................10 Kentucky ex rel. Hancock v. Paxton, 516 S.W.2d 865 (1974) .................................................................7 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).......................................................3 Nebraska ex rel. Meyer v. Peters, 199 N.W.2d 738 (1972)................................................................ 8

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Salazar v. Davidson, 79 P.3d 1221 (Colo. 2003) ............................................................9 Tennessee v. Chastain, 871 S.W.2d 661 (1994)..................................................................7 United States v. Windsor, 570 U.S. ___, 133 S.Ct. 2675 (2013)............................................6 Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796) ............................................................3 Wasden v. State Bd., 280 P.3d 693 (Idaho 2012) ..........................................................7 Washington ex rel. Evans v. Brotherhood of Friends, 247 P.2d 787 (1952)..................................................................... 8 CONSTITUTIONAL PROVISIONS U.S. CONST. Amend. I........................................................................... 11 VA. CONST. Art. II, 7..............................................................................2 VA. CONST. Art. IV, 14(20).................................................................. 11 VA. CONST. Art. V, 15 ............................................................................5 STATUTES 1 U.S.C. 7 ..............................................................................................6 2013 Va. Acts ch. 805...........................................................................10 Va. Code 24.2-1014 ............................................................................ 11 RULES Fed. R. App. P. 29(c)(5) .........................................................................2 Va. R. Profl Conduct pmbl. .................................................................10

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OTHER AUTHORITIES 2000 Op. Va. Atty. Gen. 163 ................................................................ 11 Brief of 44 Attorneys General, Davidson v. Salazar, No. 03SA147 (Colo. June 20, 2003).........9 Brief for Amici Curiae Former Senior Justice Department Officials and Former Counsels to the President on Jurisdiction, United States v. Windsor, No. 12-307 (March 1, 2003).......... 6-7 Brief of Amici Curiae Gov. George F. Allen et al., Rosenberger v. Univ. of Virginia, No. 94-329, 1994 U.S. S. Ct. Briefs LEXIS 707 (U.S. Dec. 15, 1994) ............. 11 W. Dellinger, Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op. O.L.C. 199 (1994), available at www.justice.gov/olc/nonexcut.htm.............................................5 Letter from Kenneth T. Cuccinelli to Gov. Robert F. McDonnell, Aug. 27, 2013 ..............................................................................10 Letter from Thomas Jefferson to Abigail Adams, Sept. 1804, quoted in VIII Writings of Thomas Jefferson (P. Ford ed. 1897) .........................................................................5 Roanoke Free Press (Sept. 3, 2013 edition), accessible at http://www.roanokefreepress.com/cuccinelli-in-letter-togovernor-will-not-defend-opportunity-educationalinstitution/ .................................................................................10

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This brief is submitted by three constitutional-law scholars who are professors at law schools in Virginia. A. E. Dick Howard is the White Burkett Miller Professor of Law and Public Affairs at the University of Virginia School of Law. He was the executive director of the commission that wrote the current Constitution of Virginia and, as such, was that constitutions primary draftsman. Daniel R. Ortiz is the Michael J. and Jane R. Horvitz Distinguished Professor of Law at the University of Virginia School of Law, and directs that schools Supreme Court Litigation Clinic. Among other subjects, he teaches constitutional and administrative law. Carl W. Tobias holds the Williams Chair in Law at the Richmond School of Law, where he teaches constitutional law and other subjects. This appeal presents an important question of constitutional law, particularly as it relates to one of Virginias constitutional officers. This brief addresses the authority of the Attorney General of Virginia to assert in legal proceedings that a provision of Virginia law violates the federal Constitution. Their long tenures as scholars of constitutional law and of constitutional history give the law professors a unique perspective on this question.

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All parties have consented to the filing of this amicus brief. See Joint Notice of Consent filed March 14, 2014 (document No. 58).

RULE 29(c)(5) CERTIFICATION No partys counsel wrote this brief, in whole or in part; and no person other than the amici or their counsel contributed money that was intended to fund the preparation or submission of this brief.

PRELIMINARY STATEMENT When he was sworn in as Virginias 48th Attorney General on January 11, 2014, Mark Herring swore an oath to support the Constitution of the United States, and the Constitution of the Commonwealth of Virginia . . .. Constitution of Virginia, Art. II, 7. This appeal presents the question of what an Attorney Generals duty is when he concludes that these two cherished documents are in conflict. This Court need not decide this question in a vacuum, for it has already been answered. It was answered in 1787-88, when the States

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ratified a federal Constitution that included a Supremacy Clause.1 It was answered for the first time by the Supreme Court in Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796), when the Court cited the Supremacy Clause in striking down a Virginia statute. This answer has been reinforced countless times since then, in celebrated decisions such as McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) and Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958). The answer that governs this question, then, is clear and direct. Public officials who swear to defend both constitutions owe their first loyalty to the Constitution of the United States.2

Virginia ratified the Constitution on June 25, 1788, becoming the tenth state to do so. 2 The reverse concept was the hallmark of the Articles of Confederation, which subordinated federal issues to state-law primacy. That unworkable arrangement was discarded when the States ratified the Constitution.
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ARGUMENT While this appeal presents vitally important issues of equal protection and due process, the law professors respectfully offer the Court the guidance set out below on a discrete question that also implicates constitutional law. The appellants and their amici, Virginia Catholic Conference, LLC and Center for Constitutional Jurisprudence, allege that the Attorney General of Virginia is, in their words, in dereliction of duty because of his contention here, based on his legal judgment, that Virginias ban on same-sex marriage is irreconcilable with the United States Constitution and Supreme Court holdings. Because the Attorney General takes an oath to defend the United States Constitution, not one to defend unconstitutional state laws, Attorney General Herring acted as he should have here, as have numerous other state attorneys general in other cases. This Court should reaffirm the special requirements that the law imposes on government lawyers to see that the law is truly followed.

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A. A state attorney general may challenge a provision of state law that violates the Constitution. Executive Branch officials have no obligation to defend laws that they believe are unconstitutional. While not in issue here, there is even substantial authority for an Executive to refuse to enforce a law that he regards as unconstitutional. This view is as old as the Republic. See letter from Thomas Jefferson to Abigail Adams, Sept. 1804, quoted in VIII Writings of Thomas Jefferson 310 (P. Ford ed. 1897) (But the Executive, believing the law to be unconstitutional, was bound to remit the execution of it; because that power has been confided to him by the Constitution.). The doctrine has survived into modern times. See W. Dellinger, Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op. O.L.C. 199, 199 (1994), available at www.justice.gov/olc/nonexcut.htm (referring to this proposition as unassailable and citing the numerous authorities that support it).3

Dellinger, then serving as Assistant Attorney General, wrote of Presidential powers. In the federal system, the Attorney General is appointed by the President. In Virginia, the Attorney General is separately elected by the people, Virginia Const. Art. V, 15, and thus exercises his powers and duties independently of the Governor. 5

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Attorney General Herring did not take this dramatic an approach; instead, he has continued to enforce the Virginia law while arguing that it violates the Constitution. The Supreme Court recognized just last year, in United States v. Windsor, 570 U.S. ___, 133 S.Ct. 2675 (2013), the right of the Executive to continue to enforce a law while simultaneously arguing that it is unconstitutional. 133 S.Ct. at 2686-88.4 In Windsor, as here, the opposing positions in the case were capably advocated by other counsel, so the Court is assured that the case will be fully and zealously briefed and argued. The law professors invite the Courts attention to an amicus brief filed in Windsor by 13 former senior government attorneys5 who served under Democratic and Republican administrations. Those amici disagreed among themselves as to the constitutionality of 1 U.S.C. 7 (the Defense of Marriage Act) and on other aspects of the appeal. But they united behind the premise that in appropriate circumstances, the Executive may enforce a statute but not defend it constitutionally in a judicial challenge . . .. Brief for Amici Curiae

Even the dissenting justices shared this view. 133 S.Ct. at 2700 n.2 and 2702 (Scalia, J., dissenting). 5 Four Solicitors General, five Counsels to the President, and four Assistant Attorneys General for the Office of Legal Counsel.
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Former Senior Justice Department Officials and Former Counsels to the President on Jurisdiction, United States v. Windsor, No. 12-307 (March 1, 2003), at 2. A host of state appellate courts have embraced the principle that an attorney general may challenge in court a provision of state law that he regards as unconstitutional. The Supreme Court of Tennessee noted that the vast majority of reported decisions on the subject agreed that an attorney general has not only the authority, but the duty to sue to invalidate unconstitutional enactments. Tennessee v. Chastain, 871 S.W.2d 661, 663 (1994) (emphasis original). The Court of Appeals of Kentucky faced a challenge such as this one in Kentucky ex rel. Hancock v. Paxton, 516 S.W.2d 865 (1974), where a lower court had prevented that states attorney general from attacking the constitutionality of a Kentucky statute. The appellate court reversed, holding that if the Constitution is threatened by an item of legislation, the Attorney General may rise to the defense of the Constitution by bringing suit . . .. Id. at 868.6

The Tennessee courts vast majority claim is not hyperbole. See, e.g., Fund Mgr. v. Corbin, 778 P.2d 1244, 1250 (Ariz. App. 1988); Florida ex rel. Landis v. S.H. Kress Co., 155 So. 823, 826-27 (1934); Wasden v. State Bd., 280 P.3d 693, 698 (Idaho 2012); Illinois v. Pollution Control Bd., 404 N.E.2d 352, 355 (Ill. App. 1980); 7

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In the view of the law professors, the right of an attorney general to argue against the constitutionality of a statute especially while continuing to enforce it pending final judicial interpretation is not open to question. B. Virginia has previously recognized this discretion. In 2003, Colorado Attorney General7 Ken Salazar filed an original proceeding in that states supreme court, seeking a ruling that a legislative redistricting plan was unconstitutional. The respondent, Colorados Secretary of State, challenged Salazars authority to seek such a ruling, citing the Attorney Generals duty to uphold state law. In response to this contention, the attorneys general of 44 other states, including Virginia,8 filed an amicus brief in support of Salazars authority to seek to invalidate his own states laws where, in

Nebraska ex rel. Meyer v. Peters, 199 N.W.2d 738, 739-41 (1972); Hansen v. Barlow, 456 P.2d 177, 181 (Utah 1969); Washington ex rel. Evans v. Brotherhood of Friends, 247 P.2d 787, 792 (1952). These are among the many state-court decisions that uphold an attorney generals duty to challenge the unconstitutional laws of his own state. 7 Colorado, like Virginia, provides for direct election of its attorney general. 8 The Attorney General of Virginia at the time was Jerry Kilgore. 8

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his judgment, those laws are unconstitutional. The brief includes this key passage: By filing an original action with this Court challenging the constitutionality of a state statute, [the Attorney General] is exercising his professional legal judgment as to what is in the best legal interests of the state and its citizens. ... The Attorney General has both a legal and professional duty to uphold the law. When, as here, he believes a statute violates the constitution, he has a paramount obligation to defend the constitution he is sworn to uphold.9 C. Attorney General Herring has that authority and obligation here. In reaching its conclusion on this issue, this Court may turn to the final sentence quoted above from the 44 attorneys generals brief, and substitute the word Constitution for constitution. Attorney General Herring has a paramount obligation to defend the Constitution of the United States. No lesser document not even one as important as the Constitution of Virginia can demand his loyalty over this fundamental American commitment.

Brief of 44 Attorneys General, Davidson v. Salazar, case No. 03SA147 (Colo.) filed June 20, 2003. In its ruling, the Colorado Supreme Court upheld Salazars right to seek this relief. 79 P.3d 1221 (Colo. 2003). 9

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The law expects more of government lawyers than the singleminded pursuit of a victory in court. As a direct representative of the people, the Attorney General is answerable to them, and has duties unlike those of an attorney representing a private client. In re Lindsey, 158 F.3d 1263, 1272-73 (D.C. Cir. 1998). The preamble to the Virginia Rules of Professional Conduct underscores the Attorney Generals authority to represent the public interest in circumstances where a private lawyer would not be authorized to do so. Previous Virginia Attorneys General have declined to defend the constitutionality of laws that they found were invalid, just as Herring is doing here. For example, in August 2013, Attorney General Kenneth Cuccinelli II refused to defend the newly enacted 2013 Va. Acts ch. 805, creating the Opportunity Educational Institution, because in his judgment the constitutionality of that statute could not be defended. Explaining his decision, Cuccinelli stated, If the attorney generals analysis shows that a law is unconstitutional, he has a legal obligation to not defend it.10

See Letter from Kenneth T. Cuccinelli to Gov. Robert F. McDonnell, August 27, 2013. Cuccinellis explanatory comments are quoted in the September 3, 2013 edition of the Roanoke Free Press, accessible at http://www.roanokefreepress.com/cuccinelli-in-letter-to-governorwill-not-defend-opportunity-educational-institution/.
10

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Cuccinellis approach was not novel. In 2001, Attorney General Kilgore offered no defense to a First Amendment challenge to Va. Const. Art. IV, 14(20), which had prohibited the incorporation of a church. Falwell v. Miller, 203 F. Supp. 2d 624 (W.D. Va. 2002). In 2000, Attorney General Mark Earley issued an opinion that a state statute, Code of Virginia 24.2-1014, was indefensible against a constitutional attack. 2000 Op. Va. Atty. Gen. 163, 164. In 1994 and 1996, Attorney General James S. Gilmore III participated in court proceedings challenging a policy of a public university, Brief of Amici Curiae Gov. George F. Allen et al. in Rosenberger v. Univ. of Virginia, No. 94-329, 1994 U.S. S. Ct. Briefs LEXIS 707 (U.S. Dec. 15, 1994), and the Commonwealths appropriations bill, Gilmore v. Landsidle, 478 S.E.2d 307 (1996). In both instances, he argued against the constitutionality of the public bodys action. These examples illustrate that it is, and always has been, the prerogative and duty of Virginias chief legal officer to honor his ultimate duty to the Constitution when deciding whether to defend a laws constitutionality.

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CONCLUSION In this appeal, the appellants and their amici ask the Court to ignore a long-standing legal principle. They seek to compel the Attorney General to ignore his ultimate obligation, which is to defend the best interest of his state and its citizens in light of our commitment to the federal Constitution as the Supreme Law of the Land. The appellants views cannot be squared with legal precedent, or with our Nations history. An Attorney General is not an automaton who must blindly support Virginia law, especially when he concludes that it conflicts with the Constitution as the Supreme Law. Virginias citizens elect an Attorney General on the expectation that he will exercise his legal judgment in their interest. Attorney General Herring has the authority and the duty to do so here.

A. E. DICK HOWARD DANIEL R. ORTIZ CARL W. TOBIAS, as amici curiae By: /s/ L. Steven Emmert Of Counsel

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L. Steven Emmert, Esq. (VSB #22334) Sykes, Bourdon, Ahern & Levy, P.C. 281 Independence Boulevard, 5th Floor Virginia Beach, Virginia 23462 Telephone (757) 499-8971 Facsimile (757) 456-5445 emmert@virginia-appeals.com

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CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitation of Fed. R. App. P. 28.1(e)(2) or 32(a)(7)(B) because: [ X ] this brief contains 2,274 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or [ ] this brief uses a monospaced typeface and contains [state the number of] lines of text, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because: [ X ] this brief has been prepared in a proportionally spaced typeface using [Microsoft Word 2007] in [14pt Georgia]; or [ ] this brief has been prepared in a monospaced typeface using [state name and version of word processing program] with [state number of characters per inch and name of type style]. Dated: April 17, 2014 /s/ L. Steven Emmert Counsel for Amici Curiae

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CERTIFICATE OF FILING AND SERVICE I hereby certify that on this 17th day of April, 2014, I caused this Brief of Amici Curiae Virginia Constitutional Law Professors, Supporting Appellees and Affirmance to be filed electronically with the Clerk of the Court using the CM/ECF System, which will serve such filing electronically on all registered CM/ECF users. Dated: April 17, 2014 /s/ L. Steven Emmert Counsel for Amici Curiae