Thursday , March 06, 2014 - 12:49 PM
There seems to be a trend developing in which some state officials are refusing to defend laws in their states, enacted either by a state Legislature or by voters through referendums. Gay marriage, immigration, and other issues are under attack from officials, such as attorney generals, who are in theory sworn to defend their states’ laws.
In some cases, this trend is not a bad development. In the legislative process, there are laws that are rashly passed, and signed into law, despite warnings from state legal experts that the law is unconstitutional, and/or subject to a legal appeal that will be costly to defend.
In our state, for example, legislators backed away from an ill-conceived law that would have made federal law enforcement on Utah public lands criminals in certain situations. That law was clearly bad, and would likely not have have withstood court scrutiny.
In Indiana, the attorney general has refused to defend an immigration law. The AG, Greg Zoeller, a Republican, points to a U.S. Supreme Court decision that he says will quickly invalidate the law.
When the attorney general makes a recommendation on the legality of a law being considered in the Legislature, and legislators ignore the expert advice, the AG has a right to scrutinize that law and consider the option of not defending it. That action can be both prudent and cost-effective.
There is a negative side to this trend, however. Many of the decisions, particularly incidents of AGs across the country refusing to defend states’ gay marriage bans, are based on political convenience, rather than a prudent look at the law. It was wrong for state leaders in California, for example, to refuse to defend a gay marriage ban enacted by voters.
On sensitive issues that in which there are still strong arguments on either side, AGs and other state leaders need to have the integrity to defend the will of the people they claim to represent.
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