{"id":571,"date":"2014-02-10T13:21:48","date_gmt":"2014-02-10T18:21:48","guid":{"rendered":"http:\/\/sites.law.duq.edu\/juris\/?p=571"},"modified":"2014-02-10T15:10:22","modified_gmt":"2014-02-10T20:10:22","slug":"going-rogue-part-ii-why-the-refusal-of-state-attorneys-general-to-defend-laws-is-a-troubling-trend","status":"publish","type":"post","link":"https:\/\/sites.law.duq.edu\/juris\/2014\/02\/10\/going-rogue-part-ii-why-the-refusal-of-state-attorneys-general-to-defend-laws-is-a-troubling-trend\/","title":{"rendered":"Going Rogue?, Part II: Why the Refusal of State Attorneys General to Defend Laws is a Troubling Trend"},"content":{"rendered":"

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

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

On January 24, 2013, Nevada Attorney General Catherine Cortez Masto announced that she is reconsidering 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\u00a0 Masto, a Democrat, felt compelled to do so after the Ninth Circuit issued another decision that read United States v. Windsor<\/i>, the 2013 U.S. Supreme Court ruling striking down DOMA, as requiring courts to apply heightened scrutiny to government classifications based on sexual orientation.<\/p>\n

While Masto based her decision on controlling precedent, officials in other states have offered a number of different reasons for reevaluating their offices\u2019 positions on same-sex marriage.\u00a0 Two other Democrats, Pennsylvania Attorney General Kathleen Kane and newly elected Virginia Attorney General Mark Herring, have both announced that they view their states\u2019 bans as unconstitutional and will not defend them in court.\u00a0 Herring and Montgomery County, Pennsylvania Orphans\u2019 Court Clerk D. Bruce Hanes, who was barred in September by the Commonwealth Court from issuing marriage licenses to same-sex couples, also expressed a desire to stay, in Hanes\u2019 words, \u201con the right side of history.\u201d<\/p>\n

This emerging trend of elected officials interpreting and enforcing the law according to their own consciences and legal analyses has the potential to create great confusion among courts and citizens alike as to what the law is.\u00a0 In 2013\u2019s Hollingsworth v. Perry<\/i>, which involved a challenge to California\u2019s Proposition 8, the Supreme Court did not reach the constitutional issue because California officials\u2019 decision not to defend the referendum led the Court to order the case to be dismissed on standing grounds.\u00a0 Windsor<\/i> narrowly escaped the same fate.\u00a0 In fact, much of the criticism of the Court\u2019s decision in Windsor<\/i> has centered on the Court\u2019s willingness to find that a group of legislators (as distinguished from the private party in Hollingsworth<\/i>) had standing to defend DOMA in lieu of the Obama administration, which declined to do so.<\/p>\n

Even worse than muddying the legal waters for the courts, executive branch officials\u2019 decisions can have real consequences for the people who rely on them.\u00a0 Hanes issued marriage licenses to at least 32 same-sex couples in the summer of 2013\u201432 couples whose marital status was thrown into question after the Commonwealth Court barred Hanes from issuing more licenses.\u00a0 Because marital status affects important legal issues like taxation and the inheritance of property, it is vital that public officials do their best to prevent citizens from relying on rights that they do not actually have under state law as it presently stands.<\/p>\n

More obviously, elected officials like Kane and Herring take oaths that require them to uphold the laws of their jurisdictions.\u00a0 Presumably, this duty refers to the laws as they are currently written<\/i>, not as they are interpreted by a single official or administrative office.\u00a0 No matter how well-intended a public official\u2019s actions may be, enforcing the law according to one\u2019s own conscience is simply not the duty with which he or she is charged\u2014nor is it the duty the taxpayers pay their elected officials to carry out.<\/p>\n

An Attorney General\u2019s refusal to enforce laws in court is most troubling in that it undermines the very structure of the government itself.\u00a0 As any sixth-grader who has taken a social studies class knows, the legislative branch makes the laws, the executive branch enforces the laws, and the judicial branch interprets the laws.\u00a0 When an executive branch official takes on additional interpretive duties and declines to enforce the law, power is allocated unevenly and the system of checks and balances among the three branches is compromised.<\/p>\n

Even supporters of same-sex marriage, who cheered the actions of Kane and Herring as victories, might be wise to greet the trend toward Attorneys General refusing to defend laws in court with caution.\u00a0 When so much discretion is afforded to the individuals who occupy public offices that they can alter the balance of the government itself, the tide could just as easily reverse itself if opponents of same-sex marriage take power.<\/p>\n

It was for this reason that John Adams, in his role as a drafter of the Massachusetts Constitution in 1780, famously enshrined his commitment to \u201ca government of laws, and not of men\u201d into its text.\u00a0 In examining the current trend of Attorneys General and other officials declining to defend duly enacted laws on the basis of their personal beliefs, legal analyses or political motives, citizens must consider to what degree they are willing to support a \u201cgovernment of men.\u201d<\/p>\n

This was the second post of a two-part series. You can find the first post HERE<\/a>.<\/i><\/p>\n

 <\/p>\n

Lauren Gailey follows the Supreme Court beat for <\/i>Juris Blog<\/i> and also currently serves as an Executive Articles Editor of the <\/i>Duquesne Law Review.\u00a0 Her scholarly writing has focused on such diverse topics as the Fourth-Amendment constitutionality of GPS trackers and airport body scanners, amending the Federal Rules of Evidence to protect doctors who apologize to their patients, the complex relationship between the U.S. Supreme Court and the state high courts, and the divergent views of the U.S. and French systems toward the wearing of religious clothing in schools.\u00a0 Now in her final semester of law school, she hopes to explore many other interesting legal issues before earning her J.D.<\/i><\/p>\n","protected":false},"excerpt":{"rendered":"

by: Lauren Gailey, Associate Editor On January 24, 2013, Nevada Attorney General Catherine Cortez Masto announced that she is reconsidering 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\u00a0 Masto, a Democrat, felt [\u2026] <\/p>\n

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