Two years ago on Valentine’s Day, in front of a sun-washed, white clapboard house in a quiet Norfolk neighborhood, two same-sex couples — one male, the other female — stood before a makeshift podium with microphones. History was being made.
The night before, a federal judge ruled that Virginia’s Defense of Marriage Act banning same sex unions was unconstitutional — the first such decision in the South.
The plaintiffs in the lawsuit, Tim Bostic and Tony London of Norfolk, and Carol Schall and Mary Townley of Chesterfield County, spoke happily with media.
One of those watching was Virginia’s new attorney general, Mark Herring, who’d taken office only a month earlier.
After defeating Republican Mark Obenshain in November 2013, in a race so tight it needed a recount, Democrat Herring was ready to plunge into what he knew was a controversial position with an extremely tight timeframe.
There have been many times when Virginia chose to be on the wrong side of history, Herring says on a recent April day in his office with a commanding view of the State Capitol. There was racial segregation, a ban on interracial marriage and an effort to keep women out of the state-supported Virginia Military Institute.
“It was time to show that Virginia was truly a state that was open to everyone and that we are a state that truly embraces equality,” he says.
Herring not only refused to defend the Defense of Marriage Act, but also filed papers attacking it, siding with the plaintiffs. They all ended up winning big. Within months, Herring’s gutsy moves were upheld by the U.S. 4th Circuit Court of Appeals and the U.S. Supreme Court.
Herring’s ascent has been even more dramatic because he’s taken legal positions that some consider extraordinarily activist with a distinctive progressive bent.
He’s filed flurries of amicus briefs and other legal actions to allow children of undocumented immigrants to pay cheaper, in-state tuition at state colleges, clamped down on the gun lobby, backed President Barack Obama’s plans to cut carbon dioxide pollution and beaten back challenges to overturn cleanup plans for the Chesapeake Bay.
Herring’s been a friend of labor unions, gun-control advocates, lesbians, abortion rights activists and attorney generals of big, powerful Democratic states such as New York and Massachusetts.
A political action committee formed by liberal media mogul Michael Bloomberg was the biggest donor to his campaign in 2013, giving almost $1.3 million, according to records from the Virginia Public Access Project. He also received donations from several labor unions, Planned Parenthood and Dominion Resources.
Such a constituency is a marked difference from the crowd of supporters for previous officeholders — corporate executives and buttoned-down lawmakers who could count on the attorney general to do their bidding while ruffling few feathers.
One anomaly in that pattern was Herring’s immediate predecessor, Republican Kenneth Cuccinelli. Now making the rounds as a surrogate for presidential candidate Ted Cruz, Cuccinelli gathered a national following as a hard-right social conservative. A frequent guest on Fox News shows and other conservative outlets, Cuccinelli seems yin to Herring’s yang.
In office, Cuccinelli vigorously tried to prosecute a climate-change scientist, arm Medicaid investigators, shut down abortion clinics and force women considering abortions to have transvaginal ultrasound probes.
And like Cuccinelli, Herring has drawn intense fire from the other side.
“The attorney general is supposed to be the state’s lawyer,” says Charlottesville lawyer and Republican Rob Bell, who plans to run against Herring when he seeks re-election in 2017. “Mark Herring has done just the opposite. He has used it to advance his own partisan agenda.” John Adams, another GOP candidate, has made the same point.
Bell also smacked Herring’s activism when he sent an amicus brief to a case in California in support of a lawsuit by labor unions to force nonunion workers to pay for the costs of contract negotiations.
“We’re a right to work state,” Bell says. “These are things Virginians expect their attorney general to do — stand up, take their side and defend their laws and constitution. And he is simply refusing to do it.”
“I think he’s totally wrong on what that case was about,” Herring says of Bell’s criticism. “It was not about right to work anywhere. It was about the rights of states to decide their labor laws.”
Herring also contends that his efforts are proper. His critics label him an activist “because they just don’t like what I’m doing,” he says.
Tall and thin with unruly tangle of grayish-white hair, Herring, 54, got his passion for equality and legal rights as a child in a troubled marriage. He was born in Johnson City in the Appalachian Mountains of Tennessee. His grandfather, once president of Tusculum College in Greeneville, Tennessee, was a Presbyterian minister who preached in Johnson City and also in Memphis, where his mother grew up.
She was a flight attendant for American Airlines in the 1950s. She loved her job, Herring says, and met and married his father. But the union didn’t last and his parents divorced when he was young. At age 12 in 1973, he moved to Loudoun County outside of Washington in Northern Virginia.
Herring was old enough to see and understand his mother’s strife. “I remember seeing how she struggled with some of the hardships raising my sister and I,” he says.
“The child support enforcement laws in the ’60s and early ’70s were not what they are today, but she worked really hard.” He notes that child support is an issue his office deals with regularly.
Another defining moment for Herring was learning how difficult it was for his mother when she was forced to quit her flight attendant job because she got married. When she announced her matrimony plans, “everyone in her office was happy for her, including her boss,” Herring says. “He then took her into an office, closed the door and said, ‘Let’s talk about your termination plans.’”
She was devastated. Years later, in the late 1970s, American Airlines was embroiled in a class-action discrimination lawsuit. They asked his mother if she wanted her job back. She said no.
Struggling as she was, his mother displayed a bit of wisdom when dealing with her son, who was going through a teenage rebellious stage. When Herring was a high-school senior, he felt he didn’t need any more education. Although he had taken the SATs and done well, he refused to apply to college.
His mother took the news in stride. ”I was expecting her to be livid, very angry, but she handled it very well,” he says. She simply asked him if he wanted to apply to one college anyway just in case he changed his mind.
By that point it was late January and he had missed all of the college application deadlines, except for one — the University of Virginia. “I got into my car and drove down there and applied,” he says. “I fell in love with the place. I sat in a hallway and listened to a lecture.” He was accepted, and later attended law school at the University of Richmond.
From there, Herring went on to practice law in Loudoun County, where he started a law firm and served as town attorney for Lovettsville from 1992 to 1999. In 2000, he was elected as a supervisor in Loudoun County where he owns a home and his wife works with the school system. They have two children.
In Loudon “Mark cut his teeth on politically charged environmental issues,” says Ellen Levandowski, assistant director of the Virginia chapter of the Sierra Club, who worked with Herring in the 1990s. “It was a very contentious battle between smart growth advocates versus a lot of big-wealth developers like Toll Brothers, who bankrolled a small but very vocal cadre of property rights advocates.”
In the end, she says, “thanks to Mark’s thoughtful steering for several years, a balance was struck and a sustainable growth plan was enacted in 2003.” Herring then was sent to the state Senate in a special election to replace Republican Bill Mims, who was appointed chief deputy attorney general in 2006 and later finished out the term of Bob McDonnell, who resigned to run for governor.
Herring says he takes pride in performing thorough and sound legal work on whatever case comes his way. He’s reorganized his office and added a network of regional prosecutors devoted to special tasks such as fighting heroin trafficking.
“I disagree that he’s an activist,” says Carl Tobias, a professor at the University of Richmond School of Law. “He has his profile cases and the quality of his legal work is very high.”
As for the landmark same-sex marriage ruling, “He did fine legal work in the Bostic case,” nationally known Washington lawyer Ted Olson says. The former solicitor general for President George W. Bush joined with another legal rock star and well-known litigator, David Boies, in the same-sex marriage case.
Herring says he saw the Bostic case coming while he was campaigning to become attorney general. That summer, the Supreme Court ruled in the watershed Windsor case, which said that defining marriage as for only a man and a woman was unconstitutional. A number of suits in other states were challenging their gay-marriage bans.
While busy campaigning, Herring realized that he’d have to do something about the issue quickly if he won. So he started laying the groundwork. Time and again, he notes, the Supreme Court ruled that marriage was a right, not a privilege. He also says that since the 1990s, new cases pushed back at anti-gay discrimination.
“Marriage equality was really the intersection of these two,” he says. So after winning the recount and heading for office, Herring pressed on. He hired Stuart A. Raphael, a prominent litigator at Richmond’s Hunton & Williams law firm, to be his solicitor general. And then he started filing papers.
“We found him to be warm and caring and a strong advocate for what makes families strong,” says Carol Schall, a professor at Virginia Commonwealth University, who has been Mary Townley’s partner for years. They married in San Francisco in 2008, have a teenage daughter and live in Chesterfield County. They were co-plaintiffs in the Bostic case.
Another early case involved backing the Dream act, which is intended to protect the rights of children of undocumented immigrants who came to the country illegally as children. The act, which was introduced in 2001 but has never been passed into law, gives special status to immigrants who were brought into the country illegally as children and stayed for five uninterrupted years.
Alongside of it is a federal policy created by President Barack Obama’s executive order called the Deferred Action for Childhood Arrivals, or DACA, which gives conditional citizenship and residency privileges for people who entered the United States illegally before they were 16 and before 2007.
Herring took the side of those who were lobbying for those students to receive in-state tuition in Virginia. He helped establish their legitimacy and helped them get in-state tuition at public Virginia colleges.
It was a gutsy move considering the furor over immigrants as seen in this year’s venomous presidential campaigns. Herring says that “a precedent had been set back when Bob McDonnell was attorney general [2006 to 2009] involving refugees when they came into the country.”
Consequently, hundreds of foreign-born Virginians suddenly could afford to go to college and did. Herring said he’s received many thanks from tearful parents. During a Virginia Tech day at the capitol, he says a young man from Chesterfield County stopped Herring and told him, “I want to thank you for what you did.”
Another Herring win came by accident. Herring, who has an apartment in the Manchester area of Richmond, was at his home in Leesburg when he happened to read the federal page in The Washington Post. It said that 21 attorneys general had filed briefs challenging the plans of several states, including Virginia, to protect the Chesapeake Bay watershed from pollution.
“I said that it’s time Virginia’s voice was heard in this case,” he says. “We fought and won.” The efforts to change the bay cleanup plans were blunted in court.
Some of Herring’s more recent political initiatives have been more problematic than his early string of successes.
One example is his stand against concealed carry permits for handguns. On Dec. 22, two weeks after a high-profile terrorist attack that killed 14 and wounded 22 in San Bernardino, California, Herring announced that Virginia no longer would recognize concealed carry permits from 25 other states. About 6.3 million people could carry handguns into Virginia, according to the agreements.
Herring’s bold move raised a loud protest in advance of the General Assembly session, when laws to either strengthen or weaken firearms rules were to come up.
“Mark Herring consistently seeks to interpret and apply the law of the commonwealth through the lens of his own personal, political opinions,” Virginia House Speaker William J. Howell, R-Stafford, told The Washington Post.
Herring tells Style that the concealed carry issue was happenstance, not dogma.
“In 2015, some folks had called to my attention that there was a state [Florida] that had very weak concealed carry laws,” he says. “We had reciprocity with the state.” Virginia law allows reciprocity as long as the other state has legal controls that are at least as strong as Virginia’s, including requiring background checks.
Herring asked a criminal law expert on his staff to look into the issue, and learned that many states that had concealed carry reciprocity had weaker laws than Virginia’s. The list includes Louisiana, North Carolina and South Carolina.
His bombshell set the stage for another contentious General Assembly session that ended up producing lots of Republican-inspired legislation followed by a host of vetoes by Democratic Gov. Terry McAuliffe.
Then McAuliffe seemingly blindsided Herring with a deal with Republican legislators, which would nullify Herring’s reciprocity stance in exchange for new policies that would deny gun permits for people with two-year protective orders for domestic violence. It also would require Virginia State Police officers to be available at gun shows in case private sellers wanted background check help.
But to the annoyance of gun safety advocates, the deal doesn’t require buyers in private handgun sales to go through background checks.
Asked about McAuliffe’s move, Herring said, “Ultimately, the governor made the arrangement that he did.” But he adds that he wants to extend handgun permit denials to people convicted of stalking or those with serious mental-health issues.
Herring also drew fire March 29 for joining a group of 17 attorneys general to combat carbon dioxide pollution and its contribution to climate change.
His move was starkly defiant of Republican legislators, some of whom doubt that climate change is happening or can be controlled. They want authority to veto the state’s proposals to comply with the Obama administration’s Clean Power Plan to reduce carbon dioxide pollution by 2030 by reducing fossil fuel use and encouraging renewable energy.
McAuliffe vetoed a bill that would give the General Assembly such authority. But having Herring stand next to such green advocates as former vice president Al Gore and New York Attorney General Eric T. Schneiderman in New York was especially jarring to conservative politicians, many of whom received donations from the fossil fuel sector such as Dominion Virginia Power or bankrupt coal firm Alpha Natural Resources.
Herring stopped short of saying he would join Schneiderman and some other attorneys general in a probe of oil giant ExxonMobil for allegedly knowing about global warming for decades and doing nothing about it.
And, in another issue, Herring says he will legally defend the State Water Control Board’s decision to grant Virginia Dominion Power permission to release treated coal ash wastewater at its Possum Point plant.
The effluent also will flow into the Potomac River, where Maryland’s attorney general is challenging the Virginia permit.
“It’s unfortunate that Attorney General Mark Herring is defending a very bad permit,” says Dean Naujoks, a Potomac Riverkeeper whose group is also appealing the permit. “He’s failing on a lot of points on coal ash.”
Other recent opinions seem distinctly unprogressive. With the coming execution of Ricky Gray, convicted of murdering seven people in 2006, including Richmonders Bryan and Kathyrn Harvey and their two children during a home invasion, Virginia’s Department of Corrections found itself short of needed drugs for a lethal injection.
The drugs are in short supply because many come from European companies that no longer can export them. According to Virginia law, the more gruesome electric chair can be used if a lethal injection cannot.
So McAuliffe worked out a deal in which the state would keep secret the names of American companies that can compound the deadly drugs if the electric chair option isn’t used. Herring wrote an opinion saying that McAuliffe’s arrangement was within the law.
In other matters, Herring seems like his old self. He hasn’t answered a request from Delegate David A. LaRock, a Republican from Leesburg who has tea party ties, to define “sex.” LaRock has filed a bill to exclude transgender people from being protected by the state’s anti-discrimination laws. He’s suing Herring to get an answer. Herring also advised McAuliffe on his bold plan to restore rights to more than 200,000 felons on April 22.
Herring might seem a natural to run for governor in 2017, but he ruled that out early in his term. He likes his current job just fine, he says.
When he was in Loudoun, he saw his work with smart growth planning torn apart by the pro-development Board of Supervisors that followed him in 2003. And that’s something he doesn’t want to see happen in Richmond with his legal initiatives. “I want to secure what we have done.”
“I love the job,” Herring says. “I am proud of the work we have done and we have a lot more to do.” S