Do Attorneys General Have the Right to Decline to Defend Laws?

This is a question that has been bugging us since Perry and Windsor: if officials don't agree with a law, do they have the right to refuse to defend it? It seems like a silly question. After all, state attorneys general and other officials typically swear to uphold and defend the laws and constitutions of their respective governments.

But, we've seen state after state drop their defense of same sex marriage bans. Earlier this week, U.S. Attorney General Eric Holder gave his stamp of approval to any other state officials who wish to back down from the fight. Meanwhile, other state officials, such as North Carolina Attorney General Roy Cooper, have publicly stated that despite their personal feelings, they are required to fight to uphold their states' laws.

What's the right answer, or better yet, is there a right answer?

Back Down

If the law discriminated based on race, would be even be having this conversation?

Here, we have laws that discriminate based on sexual preference. Court, after court, after court, have all come to the same conclusion: equal protection demands that these laws fall.

Six attorneys general have refused to defend bans on same-sex marriage. And U.S. Attorney General Eric Holder told The New York Times that their actions are perfectly appropriate.

"Engaging in that process and making that determination is something that's appropriate for an attorney general to do," Holder said, while carefully noting that officials should apply the highest level of scrutiny in analyzing laws before deciding whether to enforce them.

Holder also drew parallels to segregation, noting that, "If I were attorney general in Kansas in 1953, I would not have defended a Kansas statute that put in place separate-but-equal facilities."

Stand Up

Applying scrutiny? Isn't that the court's job, once advocates on both sides have fully argued and briefed the issue?

After Perry and Windsor came to nearly-incompatible conclusions on standing, and after California and the federal government refused to defend discriminatory laws, leaving nobody and legislators respectively to defend those laws, we asked a simple question: where are the executives?

Our system depends on divided powers, with the legislature carefully considering issues when making laws, the executive defending and enforcing those laws, and the judiciary weighing in on constitutional quandaries.

When executive-branch attorneys general begin analyzing statutes to decide which ones to defend, don't they encroach on both the legislature's discretion and the judiciary's review powers? And when the legislature is forced to intervene and defend their laws in the absence of the executive, don't they commit the same constitutional toe-stepping?

That doesn't even begin to address the issue of voter-approved initiatives, which, per Perry, seem to have no second line of defense after an unwilling executive.

Few would take issue with an executive refusing to defend a discriminatory law in court, but where do you draw the line? Segregation? Gay marriage bans? Voter ID laws with discriminatory effects, but arguably neutral intent?

Public defenders don't enjoy defending pedophiles and rapists, but they do their job. Should Attorneys General have the same attitude towards unpopular, or worse yet, blatantly discriminatory legislation?

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Related Resources:

• Nevada Attorney General Backs Down on Gay Marriage; Battle Over? (FindLaw's Ninth Circuit Blog)
• VA's Attorney General Won't Defend Marriage Ban; Can Someone Else? (FindLaw's Fourth Circuit Blog)
• Developments in Va., W. Va, Gay Marriage Battles (FindLaw's Fourth Circuit Blog)