INDIANAPOLIS | Don't look for Indiana Republican Greg Zoeller to join the growing number of attorneys general refusing to defend their states' laws prohibiting same-sex marriage and denying recognition of valid gay marriages performed elsewhere.
"Not only is it a dereliction of duty, but to decide to walk into the courtroom and go to the other table and argue against your state client -- I can't explain it," Zoeller said. "I think I have an obligation to defend every statute passed and the authority of the men and women who were elected to do that job."
Over the past two years, the attorneys general of Illinois, California, Pennsylvania, Virginia, Nevada and Oregon have refused to defend their state gay marriage bans in court because they believe denying marriage to same-sex couples runs afoul of the equal protection guarantees of the U.S. Constitution and some state constitutions.
Speaking in Indianapolis last week at a meeting of the Federalist Society, a group of conservative attorneys and judges, Zoeller said his colleagues in other states are wrong to put their personal beliefs ahead of their state clients.
The two-term attorney general said as a Catholic he is opposed to the death penalty. He believes it is morally wrong and expects he would be disqualified from jury service in a death penalty case because he would never approve the punishment.
"But every day, my lawyers are out there defending challenges to the death penalty," Zoeller said. "So it's not my personal views that I'm defending, it's the obligation to defend the authority of our state ... and I'll do that to the best of my skill and ability."
Zoeller acknowledged his actions are more limited than most state attorneys general because his office only exists through state law and his authority could be reduced at any time by legislative action.
Therefore, he must always be mindful of his "client" —- the state and its laws — and can't freelance like officeholders in other states whose positions and powers are guaranteed by their state constitutions.
Though that hasn't stopped Zoeller from regularly taking on the federal government on behalf of the state of Indiana, a task he sees as incumbent on the attorney general when federal laws and regulations potentially overreach into the authority of the state.
He said that's why he challenged the Affordable Care Act and has filed a second lawsuit questioning the legality of the health law's employer mandate, because he believes states have a duty to check that the limited powers of the federal government are being properly exercised.
"It was appropriate to raise the question before the judiciary: Do they have the authority or are they just making it up and hoping nobody challenges them?" Zoeller said. "It's a responsibility of states. We can't just simply sit back and defend when challenged."
Along those lines, Zoeller said he never complains when he has to defend laws passed by the Indiana General Assembly that are challenged in court, because it is an appropriate test of the state legislature's power.
"This is part of our constitutional checks-and-balances," Zoeller said. "It's all done with a very intricate design based on this premise that we don't trust government."
The New Albany, Ind., native said he developed his interest in federal-state relations early in law school and closely followed court decisions and political debates on the issue as a lawyer for Vice President Dan Quayle, a former Republican U.S. senator from Indiana.
When he became chief deputy in 2001 for Attorney General Steve Carter, a Lowell Republican, the practical implications of federalism became a daily part of his life. Even more so when Zoeller was elected attorney general in 2008.
"When you talk about the devolution of power back to the states, that's really not appropriate. States have the authority — they don't return it from Washington," Zoeller said. "Federalism springs from the states' own autonomy."