Recently, however, attorneys general in Virginia, Pennsylvania and California have given in to the temptation to abuse the power entrusted to our position by refusing to defend their states’ bans on same-sex marriage in court. Depending on one’s view of the laws in question, such a “litigation veto” may, in the short term, be a terrific thing; an unpopular law is defanged and the attorney general can take credit — indeed, he can be the hero to his political base and keep his political ambitions intact.
But in the longer term, this practice corrodes our system of checks and balances, public belief in the power of democracy and ultimately the moral and legal authority on which attorneys general must depend.
To be sure, there will be occasions where no attorney general can in good faith defend a law. There is clear high court precedent that decides some issues. Recently, my office was obliged to admit that the First Amendment prevents us from enforcing a Colorado law requiring marijuana-focused magazines to be hidden from children in stores. This was difficult, as I support efforts to shield children from what I view as the deleterious effects of our new world of state-legalized marijuana. But the binding precedent was clear, on point and unavoidable.
That’s not yet the case with state laws banning same-sex marriage. While the Supreme Court has invalidated the federal Defense of Marriage Act, which denied federal benefits to gay couples who are legally married in their states, it declined to review the constitutionality of a state ban on gay marriage. In fact, the court declined to rule because the California attorney general refused to appeal a federal district court decision in favor of gay marriage and the justices found that the appellant had no standing to bring the issue to the high court. Attorneys general must play their assigned role in the system to ensure legal controversies are resolved.
It appears that some attorneys general are wielding the litigation veto for the same reasons a governor might wield a constitutional veto: They strongly disagree with the law. But in contrast to the president or a governor, there is no constitutional authority for this litigation veto. To the contrary, it undermines many important principles of our democracy.
Legislation that has been duly enacted and signed into law by the people’s representatives (or, in the case of initiatives, by the people themselves) should not be lightly abandoned. While attorneys general are typically more accountable to the people than are the courts, they still are not part of the lawmaking apparatus; they are elected or appointed to defend the laws, not to undermine them. Attorneys general have an ethical obligation to provide zealous representation of their clients — in this case, the people whose laws they are charged with defending.
Even when the litigation veto leaves states, or the federal government, in the politically “right” position, it undermines our democratic culture. Corrections of legislative mistakes should come from the people or their legislatures, except when the separation of powers requires courts to step in and uphold constitutional principles.
I fear that refusing to defend unpopular or politically distasteful laws will ultimately weaken the legal and moral authority that attorneys general have earned and depend on. We will become viewed as simply one more player in a political system rather than as legal authorities in a legal system. The courts, the governments we represent and, most important, the people we serve will treat our pronouncements and arguments with skepticism and cynicism. One must be cynical when an attorney general refuses to defend a controversial law as “clearly unconstitutional” when there is no binding precedent and it is apparent to most knowledgeable people that the U.S. Supreme Court is likely to decide the case on a 5-4 vote.
It can be hard to resist the urge to effectively purge from the books a law one finds unwise and possibly unjust. My hope, though, is that my colleagues will recognize that our system of divided power — however messy, frustrating or imperfect — is more important than any particular law it may produce. If they do, I am confident that their use of the litigation veto will fade and the task of correcting lawmaking mistakes will return to the people, the legislative branch and, when necessary, the courts.