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Growing number of attorneys general refusing to defend gay marriage bans

Friday, February 14, 2014
Bob Brown, Richmond Times-DispatchVirginia Attorney General Mark Herring speaks during a news conference at his office in Richmond, Va., Friday, Feb. 14, 2014 where he applauded the overnight decision by a federal judge to strike down Virginia's ban on same-sex marriage.

Bob Brown, Richmond Times-Dispatch
Virginia Attorney General Mark Herring speaks during a news conference at his office in Richmond, Va., Friday, Feb. 14, 2014 where he applauded the overnight decision by a federal judge to strike down Virginia’s ban on same-sex marriage.

NORFOLK, Va. — The day after a federal judge struck down Virginia’s gay-marriage ban, state Attorney General Mark Herring wasn’t vowing to appeal or insisting his state’s law was sound.

Instead, he held a jubilant news conference and declared it “a great day for equality in Virginia,” boasting that he was putting the state “on the right side of the law and the right side of history.”

Despite their duty to defend the laws on the books, state attorneys general are increasingly taking an unusually supportive role in the movement to legalize gay marriage across the U.S. Some, like Herring, are refusing to defend their states’ prohibitions against same-sex matrimony.

Gov. Jerry Brown (D-Calif.)

The first attorney general to stop defending his state’s gay marriage ban was California’s Jerry Brown, now governor.

Illinois' Lisa Madigan took a similar stand on 2012 against the state's gay marriage ban, but before the case could go to trial, the Legislature legalized same-sex marriage.

Illinois’ Lisa Madigan took a similar stand on 2012 against the state’s gay marriage ban, but before the case could go to trial, the Legislature legalized same-sex marriage.

Kathleen Kane

In 2013, Pennsylvania AG Kathleen Kane refused to defend her state’s law banning same-sex marriage from a legal challenge in federal court.

Attorney General Catherine Cortez Masto (D-Nev.)

Nevada AG Catherine Cortez Masto said this week that arguments in support of her state’s ban are “no longer sustainable.”

Conservatives have bitterly accused them of shirking their sworn responsibility. But the AGs say that the legal case against gay marriage is crumbling and that it would be improper for them to argue positions that are clearly unconstitutional.

Attorneys general in five states — Virginia, Pennsylvania, California, Illinois and, this week, Nevada — have declined to defend same-sex marriage bans against lawsuits filed by gay couples, while a sixth, in New Mexico, challenged longstanding legal interpretations that said such unions were impermissible there. The AGs are all Democrats.

Also this week: The Democrat running for Colorado attorney general called on the current Republican officeholder to stop defending the state’s prohibition. And in Texas, Democratic gubernatorial candidate Wendy Davis demanded that her likely GOP opponent, Attorney General Greg Abbott, do the same.

The developments illustrate the growing public acceptance of gay marriage and the rapidly shifting legal landscape since last summer, when the U.S. Supreme Court struck down a key part of the Defense of Marriage Act that denied gay married couples the federal benefits and privileges enjoyed by heterosexual couples.

It’s unusual, but not unheard of, for attorneys general to decline to defend a state law.

Gay-marriage opponents argue that attorneys general, as the top lawyers for their states, are supposed to represent their client — the state — regardless of personal beliefs.

“It shows a complete collapse of the line between law and politics,” said Ed Whelan, president of the Ethics and Public Policy in Washington. “The defense of these laws is not being litigated the way it ought to be, and defenders of marriage laws will have ample reason to believe the process is rigged against them.”

But Brian Moulton of the Human Rights Campaign said the moves demonstrate the impossibility of defending gay-marriage bans in court. He noted that in three deeply conservative states where the gay-marriage movement recently won legal victories, the attorneys general were on the losing side.

“When you have federal district judges in places as diverse as Utah, Oklahoma and now Kentucky coming to the same conclusion, that points to an emerging legal consensus,” Moulton said. “I don’t think it’s shocking that you have attorneys general who are looking at how the law is emerging and are coming to similar conclusions.”

The first attorney general to stop defending his state’s ban was California’s Jerry Brown, now governor. The U.S. Supreme Court soon ruled that gay-marriage foes did not have the legal standing to argue the case in the AG’s absence. With no opposing argument, the ban fell last year.

Illinois’ Lisa Madigan took a similar stand in 2012, but before the case could go to trial, the Legislature legalized same-sex marriage. Pennsylvania’s Kathleen Kane bowed out last year, but the Republican governor’s office assumed the duty.

In Virginia, the judge who struck down the ban as unconstitutional put the ruling on hold while it is appealed. If it is ultimately allowed to take effect, Virginia could become the first state in the South to allow gay couples to wed.

The newly elected Herring was in office less than two weeks when he announced last month that he would ask the court to overturn the state’s 2003 voter-approved ban. Herring had supported it a decade ago but said he had since concluded it was unconstitutional.

Republicans were furious.

“I’m a lawyer,” said state Delegate Todd Gilbert. “I take positions I may find personally distasteful when they may benefit a client because that’s my role as an attorney.”

North Carolina Attorney General Roy Cooper, a Democrat, has taken a similar stand. While he supports same-sex unions, he said in a statement: “When legal arguments exist to defend a law, it is the duty of the Office of the Attorney General under North Carolina law to make those arguments in court regardless of whether I agree with the law.”

Nevada Attorney General Catherine Cortez Masto said in an interview this week that a recent federal appeals court ruling that gays could not be excluded from juries because of their sexual orientation had “gutted” the argument the state was using to ban gay marriage.

“You have to look at the law, look at the legal merits and see if you have a good-faith defense,” she said, adding that her personal views on gay marriage are irrelevant.

Observers say the next attorney general in the hot spot may be Oregon’s Ellen Rosenblum. The Democrat signed on to briefs last year before the Supreme Court arguing it was unconstitutional to deny gays the right to marry. A federal lawsuit challenging Oregon’s ban is moving ahead. A spokesman did not return a call for comment.

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25 more reader comments:

  1. Because it is a waste of time and has been shown to be unconstitutional. The GOP need to get a clue.

    Posted on Friday, February 14, 2014 at 8:28pm
  2. So glad!!!

    Posted on Friday, February 14, 2014 at 8:28pm
  3. GOOD! Such a waste of tax payers money and these politician’s time! Just give people equal rights…it is not hard concept people!

    Posted on Friday, February 14, 2014 at 8:29pm
  4. Cure for Aids?Real Kalki

    Posted on Friday, February 14, 2014 at 8:31pm
  5. Every state with a ban–start filing lawsuits. The Supreme Court needs to rule once and for all that these bans are unconstitutional. ACLU and Human Rights Campaign can help. Electing Democrats also helps.

    Posted on Friday, February 14, 2014 at 8:32pm
  6. The cure for (spreading) AIDS is to not fuck someone who has it or abstain from it. However, the bans are a humongous waste of time, effort, and money. They’re unconstitutional and inefficient.

    Posted on Friday, February 14, 2014 at 8:33pm
  7. It would sound like a tactic to gain knowledge of all gay people, for a mass herding into exile lol. At least to the overly paranoid;P

    Posted on Friday, February 14, 2014 at 8:38pm
  8. Because it’s happening sooner or later, so why waste time.

    Posted on Friday, February 14, 2014 at 8:38pm
  9. Amen!!! It’s about time these people get an understanding of LGBT men and women and realize we are human too and deserve the same respect!

    Posted on Friday, February 14, 2014 at 8:48pm
  10. Come on Utah – you will prevail!

    Posted on Friday, February 14, 2014 at 8:54pm
  11. THANK YOU TO ALL INVOLVED FOR STANDING UP FOR ALL AMERICAN’S

    Posted on Friday, February 14, 2014 at 9:12pm
  12. GNP

    Posted on Friday, February 14, 2014 at 9:22pm
  13. The hell with Thoes assholes

    Posted on Friday, February 14, 2014 at 9:27pm
  14. I would imagine no AG wants to stick their necks out to be the outlier

    Posted on Friday, February 14, 2014 at 9:33pm
  15. Of course they see the writing on the wall

    Posted on Friday, February 14, 2014 at 9:38pm
  16. It’s quite simple, keep discrimination on us because you believe we aren’t equal, Then our money has no value to you. We won’t pay taxes. See how inequality works?

    Posted on Friday, February 14, 2014 at 9:48pm
  17. Someone needs to give Ted Cruz a clue. He is writing legislation to allow states to ban same-sex marriages.

    Posted on Friday, February 14, 2014 at 9:55pm
  18. Double negatives are hard.

    Posted on Friday, February 14, 2014 at 10:11pm
  19. A-Stitch.
    Taxation without Representation?

    Posted on Friday, February 14, 2014 at 10:26pm
  20. It is just wasted money they are going down.

    Posted on Friday, February 14, 2014 at 10:55pm
  21. Wish Utah’s attorney General were one!!!

    Posted on Friday, February 14, 2014 at 11:18pm
  22. Good for them!

    Posted on Saturday, February 15, 2014 at 12:15am
  23. C’mon Texas!!! Micah Alexis

    Posted on Saturday, February 15, 2014 at 12:42am
  24. Looks like things are going to start changing real quick and boy are the haters going to be pissed.

    Posted on Saturday, February 15, 2014 at 1:38am
  25. Sick.

    Posted on Saturday, February 15, 2014 at 2:21am