A reader thinks that’s the wrong question:
The header of your post about Eric Holder’s speech to state attorneys general on the issue of defending unconstitutional laws is quite misleading. In addition to saying that an attorney general can demur from defending an unconstitutional law, Holder said that action should be extremely rare. He was not talking about laws that AGs don’t like, but laws that they can find no straight-faced way of defending. It is part of an age-old doctrine in which government attorneys have been known to “confess error” – for example, in an appeal from a lower court decision that was clearly erroneous. Assigning special counsel does not solve the problem. The issue is not that the particular AG does not think the law is unconstitutional, but as the highest legal officer of the state, he holds the opinion that the law cannot be defended under well-established constitutional law. The stand-in would be the AG’s representative.
The issue of defending laws that outlaw same-sex marriage may be too much of a yet unsettled legal issue to justify failing to defend such a law, but imagine if a legislature passed a law similar to the one passed in Uganda. Would anybody question an AG’s refusal to defend such a law?
Another is on the same page:
No, of course an AG should not refuse to enforce a law he does not like simply because he does not like it. But as for the actual question, whether an AG should enforce a law he thinks might very well be unconstitutional, there is no right answer except that the AG has to do what he thinks is the better execution of his sworn duty.
Like pretty much every other official elected to statewide office in this country, an AG takes an oath to support the laws and Constitution of the United States and the laws and constitution of his state. The US Constitution is supreme to a state’s laws; where they conflict, state law loses. It’s an AG’s job to say when he thinks the supremacy of the Constitution has won the day and to protect the state, to the extent he can, from liability for having violated the Constitution. That duty is no different from a corporate lawyer’s job to advise his client what it can and cannot do within the law. An AG who blindly defends a law that he believes in unconstitutional is not protecting his client; he’s doing one of the worst things a lawyer can do: he’s telling his client what it wants to hear.
Another addresses the issue in depth:
As a voter in Virginia, one of those who “hired” Mark Herring to be the lawyer for the state of Virginia, I have no problem with his decision not to defend the commonwealth’s constitutional ban on gay marriage. While I found the comments you presented interesting and thoughtful, there are a few things they did not address.
First, I’ve spent my career as a government attorney. While I represent my agency and am bound to defend its actions zealously, I not only have to follow the rules of professional responsibility and ethics that apply to all attorneys, but also consider the public interest and basic fairness in a way that a private attorney, who is representing only private interests, is not. Just because a government agency can do something does not always mean that it should do it, and that attorneys should, without question, defend it. I think the state AGs who are not defending their states’ gay marriage bans are, in part, following the obligation to be more than just a hired gun. Moreover, to the degree the state has an interest in the ban being defended, parties with standing, such as the state General Assembly, are representing that interest.
Second, state AGs are not, in most states, hired; they are elected. I voted for Mark Herring – knowing full well that he supports gay marriage – so I feel that he is, in fact, properly representing the interests of the constituency he is charged to serve as state AG. A client can change his mind, and the people of Virginia, who are the real clients here, have. The homophobic bigots who pushed this amendment think they represent the people, but the people have abandoned them. I have no problem with my elected AG doing the same.
Third, this is a very unusual situation. The sea change on gay marriage that has emerged over the last several years is one of the great cultural and political shifts in our nation’s history. It is now clear that the bans on gay marriage voted on in many states during the first decade of this century were the last gasp of those opposed to gay marriage, who wanted bans on gay marriage in state constitutions to make it more difficult for ordinary voter and legislative majorities to overturn gay marriage. Indeed, the constitutional prohibitions on gay marriage that exist in a number of states do not play the usual role of constitutional provisions – establishing protections for minorities that can be overcome by transitory majorities – but instead establish publicly sanctioned discrimination against a minority that a growing majority of citizens would now like to eliminate. This is not just a once-in-a-lifetime event; it is a once-in-a-century event. AG Herring himself voted for the ban as a member of the state senate. There are few people who understand as well how rapidly views on this issue have evolved over the last several years. There are very clear limiting principles in play here. No need to worry about a dictatorship of the AGs who refuse to defend laws they don’t “like.”
Fourth, while it is true that there is no Supreme Court decision on point – and there could hardly be any case to defend if there were binding precedent that clearly defined gay marriage bans as unconstitutional. The inexorable logic of the Windsor decision, ironically aided and abetted by Justice Scalia’s over the top dissent, is pointing in one direction. I was living in Virginia in 2006, know one of the sponsors of the ban on gay marriage, and fully understand – as you do much better than I – the bigotry and discriminatory intent behind that and these other state constitutional amendments. In fact, it is entirely possible that the sheer number of these referendums and the animus behind them exposed to the vast majority of straight Americans, who may not have thought that much about their impact on real people. Over time, I think straight Americans who voted against gay marriage came to see that they were aiding and abetting bullies and hurting real people. While it took a while, the basic sense of fair play and decency of the majority was aroused and they have no come to realize that bans on gay marriage, even if they received majority voter support several years, were a mistake.
When you make a mistake, you admit it and try to make amends for it. I view what Mark Herring has done as exactly that. He shouldn’t do it that often, but if ever there was a case for a lawyer not defending his client, this is it.