Several same-sex couples recently filed lawsuits seeking to strike down Indiana’s traditional marriage definition law. As Indiana's attorney general, I have been asked why my office is defending the statute in court when some AGs in other states are not defending their states’ traditional marriage laws from similar lawsuits. I explain I took an oath to represent and defend Indiana’s state government and its existing statutes.
I don’t make the laws — that’s the Legislature’s job — but I have a solemn obligation to defend those laws while there is a good-faith defense, and I cannot shirk my duty nor abdicate that responsibility to others.
This is not personal advocacy on my part or by the lawyers who work in my office. Whenever the state is sued, you — the taxpayers and citizens of the state — are really being sued collectively, and you are entitled to counsel.
The correct course of action is for the attorney general to provide a good-faith defense — within the resources already available — until and unless the U.S. Supreme Court decides to the contrary. The justice system cannot work if one side is not represented by counsel or if the attorneys presume they are judge and jury in their own cases and fail to zealously advocate for their clients.
Some have asked if in providing this defense I am on “the wrong side of history.” They note my counterpart, the Kentucky attorney general, recently announced he no longer would defend his state’s traditional marriage definition. But even he defended his state’s marriage law at the federal district court stage, and his decision not to continue representing his state’s position on appeal does not mean the law will go undefended. Instead, the Kentucky governor had to hire outside counsel to defend the statute in court.
Was the Kentucky attorney general on the “wrong side of history” when he represented his client, but suddenly on the “right side of history” when outside lawyers were called in at significant cost to Kentucky taxpayers to do so?
Unlike Kentucky, Indiana does not need outside counsel to defend its own duly-enacted laws the Legislature passed. My office can do so readily within our existing budget, approved by the Legislature in advance, using our own salaried attorneys who do not charge billable hours and who would be paid the same whether these lawsuits were filed or not.
It’s worth noting what happened in California, where the Proposition 8 constitutional amendment defined marriage in the traditional way. When that definition was challenged in federal court, California’s attorney general declined to mount any legal defense.
When the U.S. Supreme Court heard the Proposition 8 case last year, it ruled that because the law was not defended by California, the law’s private defenders lacked legal standing, and there could be no conclusive ruling on Proposition 8’s constitutionality. That left the question of state-level marriage definitions muddled and left our nation in suspense. How exactly is the lack of a legal defense on the “right side of history”?