The Magazine

Falling Down on the Job

State AGs shirk their duty to defend state laws.

Feb 17, 2014, Vol. 19, No. 22 • By EDWARD WHELAN
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It’s no coincidence, of course, that these derelictions of duty are occurring in cases challenging marriage. When advocates of redefining marriage to include same-sex couples pursue change through the democratic processes, they have incentives to persuade their fellow citizens. But when they resort to the courts to invalidate marriage laws, they perceive that victory may well hinge on depicting as irrational bigots people who hold the same position on marriage that nearly everyone throughout American history (including President Obama) held until very recently. What better way to signal that the cause of defending marriage is beyond the bounds of acceptable thinking than to invite or pressure ambitious or compliant state attorneys general to throw in the towel?

In the long run, those on both sides of the marriage debate ought to recognize that much more is at stake than the battle over marriage. The very concept of the rule of law—of a realm of impartial decision-making according to neutral principles set forth in advance—depends on maintaining as distinct a line as possible between law and politics. To be sure, Supreme Court decisions of recent decades have done much to obscure that line. The indeterminate nature of the “living Constitution” approach that at least five justices apply means that intelligent lawyers can plausibly reach a broad range of legal conclusions on any open federal constitutional issue.

If state attorneys general come to believe, as Herring purports, that they have discretion to refuse to defend state constitutional provisions and statutes that conflict with their own subjective legal judgments, then state laws will survive only at their sufferance. The ensuing political pressure on state attorneys general to exercise that veto power will intensify. And the rule of law may fall beyond repair.

In his courageous 2011 letter immediately resigning his lucrative partnership in King & Spalding, Paul Clement offered some words of wisdom that Mark Herring and others reluctant to defend state marriage laws could learn from. The adversary system of justice and the rule of law, Clement explained, depend on lawyers not abandoning a client “because the client’s legal position is extremely unpopular in some quarters.” As for the desire to be “on the right side of history,” Clement observed, “When it comes to the lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism.”

Edward Whelan is president of the Ethics and Public Policy Center and a leading contributor to National Review Online’s Bench Memos blog on constitutional law.

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