{"id":555,"date":"2014-02-06T13:44:41","date_gmt":"2014-02-06T18:44:41","guid":{"rendered":"http:\/\/sites.law.duq.edu\/juris\/?p=555"},"modified":"2017-11-20T20:28:48","modified_gmt":"2017-11-21T01:28:48","slug":"going-rogue-state-attorneys-general-decline-to-defend-same-sex-marriage-bans","status":"publish","type":"post","link":"https:\/\/sites.law.duq.edu\/juris\/2014\/02\/06\/going-rogue-state-attorneys-general-decline-to-defend-same-sex-marriage-bans\/","title":{"rendered":"Going Rogue? State Attorneys General Decline to Defend Same-Sex Marriage Bans"},"content":{"rendered":"

\"kathleen-kane_original\"<\/a><\/p>\n

by: Lauren Gailey, Associate Editor<\/p>\n

On January 24, 2013, Nevada Attorney General Catherine Cortez Masto announced in a statement that her office\u2019s arguments against same-sex marriage in a case currently before the United States Court of Appeals for the Ninth Circuit \u201care likely no longer tenable,\u201d despite the fact that the state filed its brief in the case of Sevcik v. Sandoval<\/i> just four days earlier.<\/p>\n

Masto\u2019s change of heart came after the Ninth Circuit handed down what SCOTUSblog reporter Lyle Denniston termed a \u201csweeping new ruling\u201d in a separate case decided on January 21.\u00a0 In SmithKline Beecham Corp. v. Abbott Laboratories<\/i>, it became the second federal court of appeals to read 2013\u2019s United States v. Windsor<\/i>, in which the U.S. Supreme Court struck down the Defense of Marriage Act, as requiring a \u201cheightened scrutiny\u201d analysis in cases involving state discrimination based on sexual orientation.\u00a0 Nevada\u2019s arguments in its brief in Sevcik<\/i> relied largely on a \u201crational basis\u201d review, which is much easier for the government to meet.\u00a0 Masto said that her office will now \u201cevaluate the State\u2019s argument in light of SmithKline\u201d and weigh its options in conjunction with the governor\u2019s office.<\/p>\n

Masto is not the first state official to reassess her office\u2019s position on the same-sex marriage issue in light of the Supreme Court\u2019s decision in Windsor<\/i>, a number of state courts and legislatures permitting same-sex marriage, and polling reflecting increasing public support.\u00a0 The day before Masto\u2019s statement, Virginia Attorney General Mark Herring, a Democrat who assumed his seat in early January 2014 after winning an extremely close election, announced his refusal to defend Virginia\u2019s same-sex marriage ban and called on a federal court to invalidate it.<\/p>\n

\"Screen<\/a><\/p>\n

Closer to home, two Pennsylvania officials\u2019 positions on the same-sex marriage issue have attracted national attention.\u00a0 Shortly after Windsor<\/i>, Attorney General Kathleen Kane, also a Democrat, announced on July 11, 2013 that her office would not defend Pennsylvania\u2019s Marriage Law, which limits the definition of \u201cmarriage\u201d to one man and one woman.\u00a0 In September, the Commonwealth Court ordered D. Bruce Hanes, Clerk of the Orphans\u2019 Court of Montgomery County, to stop issuing marriage licenses to same-sex couples.<\/p>\n

Nevada\u2019s Attorney General does seem to be alone, however, in reevaluating her position as a direct response to very recent, controlling precedent.\u00a0 The legal bases underlying other state officials\u2019 decisions to abandon their defenses of same-sex marriage bans are less clear.\u00a0 Kane explained that she considered Pennsylvania\u2019s definition of marriage as between a man and a woman \u201cwholly unconstitutional.\u201d\u00a0 Similarly, Herring had determined that Virginia\u2019s ban \u201cviolates Virginians\u2019 fundamental constitutional rights.\u201d\u00a0 He expressed reluctance to advocate for what he termed the \u201cwrong side\u201d of justice, as his predecessors had in famous cases such as Loving v. Virginia<\/i>, in which the Supreme Court struck down the state\u2019s ban on interracial marriage, and Brown v. Board of Education<\/i>, where the state unsuccessfully supported segregation in public schools.\u00a0 Hanes also cited a desire to \u201ccome down on the right side of history\u201d\u2014as well as Kane\u2019s announcement and his own legal analysis\u2014for his decision to issue marriage licenses to same-sex couples despite Pennsylvania law to the contrary.<\/p>\n

At press time, Masto had not yet announced whether her office will move forward with its defense of Nevada\u2019s same-sex marriage ban.\u00a0 On January 29, Florida Attorney general Pam Bondi, a Republican, announced that she is willing to intervene in defense of Florida\u2019s ban in a suit filed by six same-sex couples.<\/p>\n

Whether Masto decides to follow Bondi\u2019s lead or that of Kane and Herring, the fact remains that a trend seems to be emerging:\u00a0 whether an Attorney General defends a law in court is perceived to be a matter of personal choice.\u00a0 This perception raises a number of important and challenging issues that cut to the core of the American government\u2019s three-branch structure, in which, generally speaking, the legislative branch makes the laws, the executive branch enforces the laws, and the judicial branch interprets the laws.\u00a0 When executive branch officials decline to enforce laws according to their own interpretations of the laws\u2019 constitutionality, the delicate balance among the branches is altered.\u00a0 As more states\u2019 same-sex marriage bans face legal challenges, their supporters and opponents alike must confront the question of whether this behavior on the part of their elected officials is desirable and proper.<\/p>\n

Part II of \u201cGoing Rogue?,\u201d which offers answers to these difficult questions, can be found HERE<\/a>.<\/p>\n

 <\/p>\n

Lauren Gailey follows the Supreme Court beat for <\/i>Juris<\/i> Blog.\u00a0 A third-year student at Duquesne Law, she currently works as a Research Assistant to Dean Ken Gormley.\u00a0 Her prior legal work experience includes internships with the United States District Court for the Western District of Pennsylvania, the U.S. Attorney\u2019s Office, and the Education Law Center.\u00a0 She will join Jones Day\u2019s Pittsburgh office next fall.<\/i><\/p>\n","protected":false},"excerpt":{"rendered":"

by: Lauren Gailey, Associate Editor On January 24, 2013, Nevada Attorney General Catherine Cortez Masto announced in a statement that her office\u2019s arguments against same-sex marriage in a case currently before the United States Court of Appeals for the Ninth Circuit \u201care likely no longer tenable,\u201d despite the fact that [\u2026] <\/p>\n

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