Friday afternoon the blogsphere, at least from the dissenters, was agog with the breaking news that the Virginia Attorney General filed a brief supporting a motion to intervene and defend the constitutionality of the Virginia code. The motion states, "The Attorney General has the obligation to defend the constitutionality of all Virginia statutes, regulations, and policies." The brief presents the argument supporting the constitutionality of the Virginia law in the particular case being presented. The brief gives supports the CANA (Convocation of Anglicans in North America) argument, but because the motion and the brief are not about CANA but about the constitutionality of the Virginia code, it concludes that "For the reasons stated above, regardless of how this Court interprets § 57-9, the statute is constitutional."
If the judge accepts the motion and agrees with the brief it seems to me the setup for an appeal is in place. What is to prevent that judgment being appealed to the Federal courts and the Virginia code being tested on a federal level? At the same time CANA's position still has to be upheld by court, not by the Va. AG anyway, since this motion and brief is for the sole purpose of defending the constitutionality of the Virginia statues and is not the final argument for the position taken by CANA.
If the judge is not convinced by the brief, or if he does not accept the motion to intervene the Attorney General's support for the CANA position is moot.
The Attorney General specifically says, "Pursuant to Virginia Supreme Court Rule 3.14, the Commonwealth of Virginia, upon relation of Robert F. McDonnell in his official capacity as Attorney General of the Commonwealth, moves to intervene in this matter for the limited purpose of defending the constitutionality of Virginia Code § 57-9 (“§ 57-9”).
BabyBlue's headline on the posting of the brief and motion reads, "Friday, January 11, 2008: BREAKING NEWS: VIRGINIA ATTORNEY GENERAL SIDES WITH VIRGINIA CONGREGATIONS THAT VOTED TO SEPARATE FROM THE EPISCOPAL CHURCH"
This is a reach. What the Virginia Attorney General holds concerning the specifics of CANA's position is a different matter than his required duty to defend the constitutionality of Virginia law. This brief and motion is only a middle step, along with a flood of other motions and briefs to be presented to the Judge.
It's too soon for joy or sorrow, other than to note that if the Virginia Attorney General were to take sides in an argument between two parties for the purpose of furthering that party's position, rather than defending the validity of the law, he would need to identify himself as a lawyer for one or the other particular party. One hopes the Attorney General is not siding with anyone, but rather giving an opinion about the law. It is for the lawyers for CANA to take sides.
At least that is how it seems to this non-lawyer.