If the governor and attorney general won’t defend the state’s ban some legislators say they will. >> 32 lawmakers ask McAuliffe to appoint…

If the governor and attorney general won't defend the state's ban some legislators say they will. >> 32 lawmakers ask McAuliffe to appoint legal counsel

Del. Bob Marshall and 31 other state lawmakers have asked Gov. Terry McAuliffe to appoint legal counsel to defend Virginia's constitutional ban on same-sex marriage now that Attorney General Mark Herring has said he'll seek to overturn it, not protect it.

The request is spelled out in a two-paragraph letter that Marshall, R-Prince William County, sent to McAuliffe on Friday, one day after Herring announced he thinks the marriage ban violates the U.S. Constitution.

It was the second procedural response of the day by House of Delegates Republicans to Herring's decision.

In a separate development, the House Courts of Justice Committee fast-tracked a bill that would give lawmakers standing to defend state laws that the governor or attorney general won't.

"It is imperative that we provide a mechanism to protect and defend the people of the Commonwealth and the laws they have duly adopted," Del. Todd Gilbert, R-Shenandoah County, said after his HB706 advanced on a 13-7 vote.

A spokesman for McAuliffe did not commit the governor to a position when asked about the legislation but said McAuliffe supports Herring's conclusion "and his efforts to ensure that all Virginians are treated equally under the law."

He also said McAuliffe will continue to uphold his responsibility to execute the state's laws.

"If the bill passes the General Assembly, the governor will evaluate it at that time," press secretary Brian Coy said.

Coy said the governor needed to consult with his legal counsel on Marshall's request.

The letter from Marshall - he's an architect of the 2006 constitutional amendment banning gay marriage - is signed by many of his House colleagues, according to a copy shared with reporters.

Thursday, Herring said his office will support efforts by two gay couples asking the U.S. District Court in Norfolk to overturn the state's constitutional and statutory bans on gay marriage without a trial.

The plaintiffs include Timothy Bostic and Tony London of Norfolk, whose application for a marriage license was denied last July in Norfolk Circuit Court.

A hearing on that case is scheduled for Jan. 30.

Norfolk Clerk of the Circuit Court George E. Schaefer III has instructed a private attorney being paid by the state's Division of Risk Management to keep defending the marriage ban.

Democrats in the House Courts of Justice Committee pushed back against their Republican counterparts, who moved up the vote on Gilbert's bill. He prefiled it Jan. 7, before Herring's announcement, but it wasn't scheduled to be heard this week.

"We take our time on important issues, and we've not done that here," said Del. Jennifer McClellan, a Richmond Democrat.

The bill raises significant separation-of-power issues, said Michael Kelly, a spokesman for Herring.

"To proceed with this bill without an examination of its legality under our constitution and the consideration of the near endless variety of practical consequences is imprudent, if not irresponsible," he said.

Several Democrats on the courts committee raised similar concerns.

"I think we're making a big mistake here," said Del. Charniele Herring, an Alexandria Democrat.

Del. David Albo, R-Fairfax County, the committee's chair, said the legislation isn't just aimed at the new attorney general, who is a Democrat. He said former Republican Attorney General Ken Cuccinelli also cherry-picked which laws he wanted to enforce.

"I've been pissed off when Ken Cuccinelli did it, too," Albo said.

Julian Walker, 804-697-1564,

[email protected]

Kathy Adams, 804-697-1563,

[email protected]