The GOP-controlled House approved a bill Monday giving themselves that power.
Herring announced last month that he will join gay couples in two federal lawsuits challenging the ban. Democratic Gov. Terry McAuliffe has supported Herring’s move.
Republicans in the GOP-controlled House said McAuliffe and Herring had abandoned their duty to uphold the state’s laws, regardless of their personal views.
But Democrats argued that Herring had a duty to act as he did once he concluded that the state law violates the federal Constitution, which trumps state constitutions.
The measure was authored by Del. Todd Gilbert, R-Shenandoah County, and Del. Bob Marshall, R-Prince William County. Marshall was a principal architect of the 2006 state constitutional amendment, which was approved by 57 percent of voters in a statewide referendum.
Article continues belowHouse Democrats scoffed at the bill, arguing that a state legislature has no legal standing to interject itself into a federal court proceeding.
“What a novel concept,” said Del. Joe Morrissey, D-Henrico County, told The Virginian-Pilot. “If you ask any law school professor or constitutional scholar, they will tell you with absolute certainty that no General Assembly can give or confer standing in federal court.”
The House-passed measure faces uncertain prospects in the Senate, where there is an even split between Republicans and Democrats and Democratic Lt. Gov. Ralph Northam has the power to break tie votes.