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Do state officials have the right to decline to defend their state's laws? As we noted before, it is not an easy question. But University of Denver law professor (and rabbi) Kris McDaniel-Miccio, who is a plaintiff in one of the lawsuits challenging her state's gay marriage ban, disagrees: She penned an open letter to Colorado Attorney General John Suthers arguing that it is his duty to not defend the law.
Why? When he was sworn into office, Suthers pledged to uphold the laws and the constitutions of the United States and Colorado. With more than two dozen courts unanimously siding with marriage equality, including the Tenth (twice) and Fourth circuits, McDaniel-Miccio argues that the federal question is settled and that Suthers is not fulfilling the duties of his job by pressing forward.
Previously, Suthers stated that he was only reluctantly defending Colorado's Amendment 43, again, as a matter of duty, and despite his disagreement with the law.
Professor McDaniel-Miccio's open letter, published in Denver Westword, reads in part:
You claim that you don't believe in the underlying premise of the Constitutional bar. You claim that marriage between two consenting adults should be permissible regardless of gender. You also claim, after your first defeat in the courts, that you actually know that Colorado's discriminatory amendment will inevitably fall. Yet you continue to defend the indefensible.
You have claimed that it is your duty to protect the laws of this State -- a rather admirable position and one that might be at once genuine and sincere. But I do question whether you assume this duty.
Let me explain.
Article 12§8 of the Colorado Constitution states, "Every civil officer...shall, before he enters upon the duties of his office, take and subscribe an oath or affirmation to support the constitution of the United States and of the State of Colorado...." Let's deconstruct this provision in the Colorado Constitution. First, as the AG you are a civil officer. Check. Second, unless you believe as Justice Scalia does that "shall" means "maybe," there is no discretion; as a civil officer you must swear an oath or make an affirmation. Check. Third, that oath or affirmation requires that you "support the Constitution of the United States." And herein lies the problem.
McDaniel-Miccio goes on to note that "myriad federal Courts (e.g., Tenth, Fourth, etc.) and state Supreme Courts have found that such laws violate the Fourteenth Amendment to the American Constitution," and because of this, he should drop his defense of the ban.
She also takes issue with his office's use of the argument that marriage about protecting and encouraging procreation:
The U.S. Supreme Court did not tie marriage to procreation in the Loving case (interracial marriage) or in cases involving inmates or deadbeat dads. They declared that marriage was a fundamental right because it is a vital to being human. I would also assume that when you tied the knot, as I did, you didn't promise to "love, honor and procreate." Thus to use the "marriage/procreation" standard is not only culturally absurd but legally specious.
While Professor McDaniel-Miccio makes a lot of great points (especially regarding the "procreation" argument that seems to be appearing in states' briefs nationwide), there is one question that remains: How do you choose between your duties to the state and the federal government?
Suthers' oath had two parts: to defend the U.S. constitution and laws as well as those of the State of Colorado. Amendment 43, as shameful as it is, is part of the state's constitution. And in United States v. Windsor, the Supreme Court said that the definition of marriage was historically a state's domain.
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One could argue that Suthers' duty to defend his state's marriage definition therefore trumps his duty to agree with intermediate appellate court opinions -- opinions which are all but guaranteed to be reviewed by the U.S. Supreme Court next term.
Of course, one could also argue that federal guarantees of equal protection trump silly state amendments, no matter what.
Like we said before: It's not an easy question.