Seven years ago, the voters of Virginia approved a constitutional amendment barring same-sex marriage in the state. Two couples are presently suing to void the amendment on the grounds that it violates the equal protection provisions of the U.S. Constitution. The office of the Attorney General, last year, began to represent the state and defend the amendment.

But two weeks after taking over the office, AG Mark Herring announced that his office would switch and side with the plaintiffs. He is of the opinion that indeed the Virginia amendment is unconstitutional, and that he is required to take the side of "the people of Virginia ... and history."

Dozens of Republican lawmakers signed a letter Friday calling on Gov. McAuliffe to provide legal counsel to defend the amendment, There's also a bill in the House being fast-tracked, authorizing an independent counsel. Minority Leader Toscano observed, "What we're going to do with this bill is create 140 little attorney generals. It's a recipe for chaos."

McAuliffe, at last report, had not yet read the letter, and has not commented on the situation. Is the AG obligated to defend the laws of Virginia or follow a higher authority based on his opinion? If the AG's office has already started such a defense, is he under an ethical obligation to support that effort? Did he consult with staff before going public? In his NPR interview explaining the decision he mentions discussing it with his children.

Politically, has Herring put McAuliffe in a situation? It seems that if McAuliffe backs Herring he'll increase the pressure on Republicans, already shuffling their feet, to plant them. Can the Governor avoid a public expression of support, and how would that be seen?

(Dave Sagarin, January 27, 2014)