Can State Attorneys General Refuse to Enforce Gay Marriage Laws?

 

It looks like another state attorney general, this time in Oregon, is refusing to defend a ban on gay marriage. This is a controversial practice, but I tend to think that these AGs are acting within their rights so long as their good faith interpretation of the federal Constitution is that it prohibits states from barring gay marriage. While the Supreme Court’s most recent gay rights case (U.S. v. Windsor) didn’t include such a prohibition, it is difficult to see why the justices would treat state laws any different than the federal Defense of Marriage Act (a key part of which it struck down in Windsor). The rule is pretty simple: State officials are not bound to enforce state law that they believe violates the Constitution.

On this question, we can go back to the debate between Abraham Lincoln and Stephen Douglas, where — this probably won’t surprise you — I think that Lincoln had the better argument. Senator Douglas took the view that once the Supreme Court had decided Dred Scott v. Sanford, all officials were bound by the constitutionality of slavery. Lincoln took a different view. He believed that, as a Senator or President, he had the right to interpret the Constitution too. Lincoln believed, as I argued in my 2010 book, Crisis and Command, that he had an obligation to carry out a court’s judgment in an individual case (return Dred Scott to Sanford), but that he did not have to apply it as precedent to similar cases.Here is Lincoln’s view, from his First Inaugural:

I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice.

At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.

Of course, here Lincoln is making a more radical argument than the state AGs. The state AGs believe they are enforcing a Supreme Court decision’s reasoning against state law. Lincoln is arguing he can enforce his understanding of the Constitution at odds with the Court’s reasoning.  But it seems to me that accepting Lincoln’s broader reasoning must support the state AGs’ actions here.Now, this also means that state AGs who have a good faith belief that the Constitution does not prevent states from banning gay marriage can continue to enforce the bans too. But state AGs may be prohibited by state law from acting contrary to state law, even in the face of the federal Constitution, until a state court finds that state law is at odds with the Constitution — that will depend on the state. In that case, an honest state officer should resign rather than carry out an unconstitutional law. 

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  1. Profile Photo Inactive
    @EricJablow

    It is dangerous for an Attorney General to refuse to defend his State’s Constitution, and especially dangerous after the people of his State have amended it through initiative. Often, an initiative is made because the people of the state perceive an injustice in state law or the State Constitution.  For example, the California or Michigan prohibitions on Affirmative Action in their University systems were passed by initiative.  Suppose the people of a state pass an initiative that cuts down on the power of the State government.  Government officials can find a group that disagrees with the initiative, invite the group to sue, find a pliant judge, and refuse to defend the Constitutional amendment. That’s how CA Proposition 8 was overturned.

    Had the CA AG defended Proposition 8 in court, with all the ability he had, people would think the proposition had had a fair hearing, and would have felt that the legal maneuvers would have been legitimate.

    Remember, we think that every criminal defendant deserves to have a lawyer that will defend him without considering the convenience of the government. Anything else is Stalinist blather.  So too with State Constitutions.

    • #1
  2. Profile Photo Member
    @WBob

    There can’t be a “good faith” reason here, because such “reason” would ultimately require them to refuse to enforce any other definition of marriage as well.  As a result,  it would ultimately require the abolition of marriage itself.  All that legalizing same-sex marriage does is move the line that defines marriage from “here” to “there”.  The line still exists after it’s moved. And that new placement of the line  will itself be found to be constitutionally invalid by AGs also supposedly acting in “good faith”. So this isn’t about good faith.  It’s the imposition of one opinion by sheer fiat.  

    • #2
  3. Profile Photo Inactive
    @mask

    Wait, so the Constitution demands gay marriage via the 14th amendment but didn’t the black vote until the 15th and women’s vote until the 19th?

    This is why the law seems nonsensical and capricious to the non-initiated.  It seems like a convoluted process by which people can reach most any conclusion they want.

    • #3
  4. Profile Photo Inactive
    @mask

    Didn’t Kennedy say in the Windsor opinion that the power to define marriage resided with the states? Or was only when arguments were being made?

    And didn’t the Windsor decision only apply to the FEDERAL government – it was forced to recognize marriages as defined by the various STATES?

    Or are they going off of Kennedy’s ludicrous statement that the only thing that can motivate a traditional state definition of marriage is animus towards gay people?

    So, now instead of 9 in black deciding these things for the whole country we’ve also got one guy in a suite at the state level?

    Does this mean that polygamists can now flock to Oregon because a good faith reading of marriage rights also includes them?

    • #4
  5. Profile Photo Inactive
    @mask

    In the case of Californa’s governor and AG refusing to defend the CA Constitutional definition of marriage didn’t this also cause problems of standing for other parties?

    At the very least, if the AG is going to refuse to represent the state in such matters then private citizens and institutions should be able to get standing.

    • #5
  6. Profile Photo Inactive
    @LHFry
    Bob W: There can’t be a “good faith” reason here, because such “reason” would ultimately require them to refuse to enforce any other definition of marriage as well.  As a result,  it would ultimately require the abolition of marriage itself.  All that legalizing same-sex marriage does is move the line that defines marriage from “here” to “there”.  The line still exists after it’s moved. And that new placement of the line  will itself be found to be constitutionally invalid by AGs also supposedly acting in “good faith”. So this isn’t about good faith.  It’s the imposition of one opinion by sheer fiat.   · 4 hours ago

    Edited 3 hours ago

    The elimination of state recognition of marriage has always been the goal of homosexual activists and their leftist enablers (“let’s get the state out of the marriage business”).   Once any relationship can be legalized as a marriage, then the institution will disappear.   A recipe for chaos of course, but a happy occurrence for the left (communists, progressives, whatever) as heterosexual marriage and the kinship structure it creates is the best defense against an overambitious state.

    • #6
  7. Profile Photo Member
    @SteveSc

    The question is irrelevant.  They are doing so and paying no price that I can see.

    • #7
  8. Profile Photo Inactive
    @NickStuart

    Lay person’s version: Leftist officials will do whatever they please secure in the knowledge nobody’s going to stop them, or enen reverse them when they leave office.

    • #8

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