Some attorneys general understand the obligation of a state’s highest legal representation, even if the Attorney General of the United States does not.
Arkansas Attorney General Dustin McDaniel, a Democrat,told the press yesterday that he personally he supports allowing same-sex couples to marry, but will nonetheless continue defending his state’s 2004 ban on gay marriages in court.
The news angle, as reported, was that McDaniel, a Democrat serving his final year as the Arkansas AG, is the first statewide official in conservative Arkansas to back same-sex marriage. Ethically, however, the significance is that although he disagrees with the current law of the state that is his client, he will nonetheless do his duty according to the laws he swore he would uphold….as he should, as an ethical and honorable lawyer who is there to serve the public’s interests, not his own conscience.
I will keep emphasizing this as long as the neither most of the news media nor the majority of the public understand it: a lawyer’s duty is to represent his or her client, even if the client’s position varies from his own. If a lawyer cannot bring himself to do that, then his ethical course is to withdraw from the representation. In an Attorney General’s situation, that means resigning from his office.
Among those, disgracefully, who do not understand this duty (or, more likely, choose to violate it) is President Obama’s Attorney General Eric Holder, who told his state counterparts in February they weren’t obligated to defend laws in their states banning same-sex marriage if they felt, as he did, that those laws violate the U.S. Constitution. Wrong, obviously wrong and impeachably wrong. The Courts decide what laws are valid, not lawyers. But Holder is an incompetent, unethical, political hack.
Not McDaniel, who told the AP, “I do support marriage equality and I do believe Arkansans should have the right to be equal in the eyes of the law.” But, he said, “I’m going to zealously defend our constitution…”
Voters overwhelmingly approved a constitutional amendment defining marriage as between a man and a woman in 2004, but federal judges have struck down similar bans in Michigan, Utah, Texas, Oklahoma and Virginia. An Arkansas judge will rule by the end of the week in a lawsuit challenging the Arkansas ban.
“I do not take orders from Eric Holder and I’m determined to live up to my obligation, and that includes with regard to our state’s definition of marriage,” McDaniel said.
Ethical lawyer, principled man.
We could use that in our Justice Department.
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Pointer: Washington Post
Facts: Politico
Ethics Alarms 
What? What if a state voted something obviously unconstitutional — like denying women the right to vote? What is a state AG to do then?
Obviously unconstitutional? Clearly, beyond any legal argument? Then its not a law. But a law that’s been on the books for 10 years doesn’t fit that description, which is why the issue is being litigated all over. Neither did DOMA. Or do you think the AG and executive should simply by-pass the courts and the separation of powers? What’s to stop any AG from deciding that any law is “obviously unconstitutional”? If he won’t do his job, he should quit and let someone who doesn’t think it’s so obvious take over.
I’m not referring to DOMA here — I was throwing out an easy example to see how you examine this. Something that is happening all over right now is the “nullification” craze at the state level. It will be interesting to see how the AGs deal with that.
Nullification is simply a violation of executive duty and lawlessness. It’s no craze; it’s arrogance, abuse of power and executive betrayal of oath and duty..
Beth: Why don’t you stop embarrassing yourself and READ THE CONSTITUTION?
I’m sorry — you think a law that said that women could NOT vote would be constitutional? Maybe I have a more recent copy…..
No Beth, the constitution isn’t technically where your rights are enshrined. It may happen that people use the constitution to defend their rights, but the constitution defines what various levels of the government can and cannot do. The constitution does not allow the AG to pick and choose which laws he will allow through, and which he fights. The constitution allows the courts to rule on the constitutionality of a law. Therefore, if a law removing women’s ability to vote was tabled and passed, when it was brought before a court, I would expect the AG to defend the bill, and the court to strike it down.
The only time the state AG should refuse to defend a law is if the only defense is to ask the U.S. Supreme Court to overrule one of its own precedents. This clearly is not the case now with respect to SSM, nor was it the case in 2009, when Supreme Court precedent clearly required lower courts to reject 14th Amendment challenges to these laws.
To Beth: You would know that any women, in such a case where the state voted to disenfranchise them by virtue of them being female, would have standing file suit to seek redress. I would think that they would have a prima facie case of unconstitutionality and be able to seek an immediate injunction against the law if not a summary judgment. The point is only that the we employ courts to decide these issues.
Chris — I know how the legal system works — the question is what should an AG do.
If you knew how the legal system worked you wouldn’t have to ask this question. The AG should ALWAYS represent their client. Always. It’s the court’s job to rule on the validity of laws, not lawyers.
Well, Beth clearly knows how the system works, as a practicing attorney and all.
No comment.
I’ll ignore the snark. But, I am not currently a practicing attorney — but I did practice for a loooong time — too long.
I wasn’t intending snark. Where was it? I apologize. If you got snark out of that, it was inadvertent. I simply meant that you evidence plenty of knowledge of the legal system, and had lots of experience, so not understanding it was not an issue, regardless of the dispute. But do you know long it takes for me to type all that?
It was the italics — but I apologize for misreading it. In any event, you know I have a hard shell so no worries.
My mistake…they really weren’t sarcastic italics.
Beth, here is, in part, the deal. I am not against gays having all the rights given to married couples. Happily, the laws of the land do NOT necessarily deny those rights to gay couples. My lady and I have been together for thirty years. When we first joined together as a couple, her employer stated emphatically that, because we were not legally married, they would not add me to her group insurance policy. That has since been changed, but she has retired and I have been granted veterans coverage. No longer relevant. The simple fact is that we are no longer looking for a granting of equal rights…those are mostly there…what the gay (dare I call it the aberrant society…) is looking for is change a in what is an acceptable lifestyle. Specifically, what the GLBT community is seeking is an admission that aberrant behavior is both acceptable and, more importantly, normal. It is not. Webster’s definition of marriage is as follows:
a (1) : the state of being united to a person of the opposite sex as husband or wife in a consensual and contractual relationship recognized by law. a (1) : the state of being united to a person of the opposite sex as husband or wife in a consensual and contractual relationship recognized by law
Now if the state in which this “marriage” does not recognize same-sex marriage as legal, THEN NEITHER SHOULD YOU. I consider it aberrant, but I am an old guy. I consider a lot of things aberrant that todays society does not. What I do believe, with all my heart, is that gay couples are, or should be, absolutely given the same rights as non-gay couples, such as my lady and I are, even though we have been together for more years than we have been apart, but have never seen the necessity of a formal marriage ceremony. Note that this does NOT demand the change of an official definition of marriage.
I wasn’t addressing gay marriage at all — just the dilemma if a State does pass a law that is unconstitutional on its face.
Okay, then let’s get specific. A state AG is required by the state in which he serves to enforce the laws of that state. The only way to find out if a state law is unconstitutional is to have that law reviewed by SCOTUS. In that case, the state AG would be required by the duties of his office (unless he was the AG for the US or California) to defend the law of his state. I would guess SCOTUS would find the law unconstitutional rather quickly, but your concern was what the state AG would be required to do. That’s it.
How would this occur, though? If the law was passed and the governor signed it, the AG would either enforce or be fired. If the governor vetoed, the law passed over his veto, then the governor would be in violation of his duties. Presumably a writ could be obtained to make her enforce the law. The case where a law is on the books for years and a new regime doesn’t like it…well, tough. It’s the law.
http://thenewcivilrightsmovement.com/breaking-louisiana-house-votes-to-keep-same-sex-relations-illegal/politics/2014/04/15/85857
The arrests, and jailings pending trial and dismissal of all charges, will continue.
The laws are a dead letter: they can’t be enforced, and wouldn’t be, any more than Jim Crow laws could be enforced. There are plenty of anti-sodomy laws still on the books. Even the foolish sheriff in the story apologized.
1. Nobody considers Jindal a real contender for the GOP, but it makes the party look bad by saying so.
2.”Is believed” by whom? Crappy journalism, accusation by innuendo.
3. Hodges’ quote is wonderful. The only correct part is “Just because we decriminalize something doesn’t make it right.”
4. She is an idiot.
5. Thanks. I’ll have to write this one up.
I doubt that there would be jailings pending trail, as the accused would be released on their own recognizance if violating the sodomy law was the only charge againast them.
(I do not know if Louisiana state courts can sua sponte dismiss criminal complaints if the facts pleaded do not provide legal reason for a conviction,)
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You know, I don’t care much about gay marriage…
I could go into my whole thing about how I think it should all be civil unions, and marriages should be a thing you get at a church and that has zero legal implications, but I won’t.
I will say, however, that gay marriage has never won at the ballot box. No voter-approved gay-marriage measure has ever passed at a state level – all states that allow it either had it passed by the legislature, or had it done by judges.
Make of that as you will.
I don’t think that is necessarily an argument against it. There are reasons we aren’t a pure democracy — and protecting the minority from the majority is one of those reasons.
If homosexuals have a legitimate constitutional argument for protection of rights they claim they are denied, then by all means, the Republic is set up to protect those rights (at the appropriate level) regardless of a mass movement claiming they don’t have those rights.
I think the reason that gay marriage has never won at the ballot box is because it’s about more than just gay marriage. If, as Scott suggests (and full disclosure, I do as well) we kept church and state separate, we could have gay civil unions with all the assorted benefits under the law, while not forcing religions to do something against their cannon. The reason gay marriage has never passed the ballot isn’t (in my opinion) because the majority of people care whether gay people can get married, but because they don’t think that the government should be able to dictate faith to the faithful. Atheist though I am, I agree.
Oh, believe me, I probably hold an even more Market based view of the role of Religion in all this than even your description.
I’ve merely pointed out, that in the realm of determining if rights are, in fact, being denied a minority by the majority… A plebiscite isn’t the tool to determine it.
Huh? No church is required to hold or respect gay marriages; governments are. Once the government started requiring blood tests and handing out tax breaks and other goodies, marriage ceased being just a religious issue. How does allowing gay couples to do what non-gay couples do “dictate to the faithful”? They can believe what they want to believe…they just can’t discriminate outside the church. “My faith dictates that I regard gay people as sinner and lesser citizens” doesn’t fly with blacks and women; there is no reason to believe it should with gays.
Gay marriage will win at virtually all ballot boxes in about 5 more years. The majority now supports it—it would win a national referendum. The cultural change has just been too swift, that’s all…the only similarly rapid evolution in public attitudes was abolition. Louisiana is still fighting for anti-sodomy laws. The approval is not evenly distributed.
It hasn’t yet, Jack.
Because while people say when polled that they support gay marriage (“Sir, do you support gay marriage, or should I just mark you down as a homophobe?”), when they are alone in the voting booth they vote however they like.
I think it will never get to all ballot boxes unless I read Justice Kennedy’s latest rulings wrong. Sometime in 2015 or 2016 he’s going to pull out the stopper and REALLY let the brown stinky tide wash over this nation.
I guess I have to ask: whats “the stinky brown tide?” Equal rights not based on sexual orientation? There is no danger of an epidemic of gayness, since this isn’t contagious. I don’t get it at all, and sure is a might ugly characterization for perfectly law abiding Americans, among them some of our most productive and creative citizens, simply wanting to be free to live their lives without stigma.
When Massachusetts, a decade ago, ruled that the Mass constitution compelled acceptance of gay marriage, I analyzed the decision and seemed clear that 1) the opinion was correct on the law and ethics 2) it would be just a matter of time before SCOTUS reached the same conclusion. Justice Kennedy isn’t to blame. The Constitution and the Declaration are.
“live their lives with stigma?” I think we’ll GLADLY grant that. 😀
I don’t think that there’s a danger of an epic of gayness either, despite the poking fun at each other we did in high school, where any word or gesture that was insufficiently masculine was grounds for merciless torment regarding one’s sexuality.
I’m not sure the Mass SJC was completely right on the law, since there is not right to marry guaranteed and the question of mixed-race v. same-sex marriage is apples and oranges. The Founding Fathers would have laughed at the idea of same-sex marriage, I’m sure, the idea would have been either ridiculous or repulsive to them. Then again, an air force was not dreamed of then, nor were automatic weapons or the internet, so if you’re saying the interpretation changes with the times, I get that.
My main problem now isn’t so much the idea of equality, as I said, it doesn’t matter to me that a same sex couple live up the block, I’m not going to heave a brick through their window or harass them, though I also won’t invite them to dinner, which is my prerogative.
My main problem is that this is now a battle for dominance and bullying, in which gay culture seems to want to get up into everyone’s face and even seek to do harm to those who disagree with it by trolling your donations, private conversations, any aspect of your life in which you may have indicated you are down with anything other than full celebration of gay marriage.
When I first used the term the brown stinky tide in 2009 it was in a post encouraging friends in Maine to vote to repeal gay marriage in that state, saying “let’s roll back the brown, stinky tide.” Now it doesn’t so much refer to gay marriage itself, but this rising tide of forced acceptance and celebration. Is it maybe not too nice of a way to refer to it? No it isn’t, but the other side forfeited any right not to be poked fun at in a nasty way when their standard-bearer decided he was going to create a google-bombing campaign linking an opponent’s name with the frothy mix of fecal matter an lubricant that results from anal sex.
“No it isn’t, but the other side forfeited any right not to be poked fun at in a nasty way when their standard-bearer decided he was going to create a google-bombing campaign linking an opponent’s name with the frothy mix of fecal matter an lubricant that results from anal sex.”
1. As you know, tit-for tat is satisfying but not ethical.
2. The intolerance and bullying you reference can’t be attributed to pro-gay marriage advocates alone, as the Sterling train wreck amply proves. Its far broader than that and extends to similar bully tactics by gender, race and belief. It’s not gays, per se, but their political bedfellows.
3. Surely it is unfair to punish anyone for what Dan Savage did. He’s sui generis. And not that he deserved it, but Santorum conflating homosexuality with bestiality was objectively despicable if intentional, and incredibly stupid, if not.
The animus toward harmless, law-abiding citizens based on their legal, consenting and harmless sexual attractions and activities, coming from intelligent, analytical people like yourself, utterly bewilders me. I’ve worked closely with gays of both genders since college, and among them have been some of the best, most ethical, fairest, most decent individuals it has ever been my honor to know. Why wouldn’t they be accepted? At a certain point, “it’s a matter of faith” just isn’t a satisfying answer.
That was supposed without stigma—thanks for the correction. Why do you think it’s fair and rational to make them live WITH stigma? What stigma? The stigma of being what they were born as? That seems pretty harsh to me, and definitely to them.
That was supposed to have a “laughing” icon next to the paragraph to reflect that I was saying it in a joking manner to point out it was the opposite of what you meant, but those don’t register here.
No, I got it. I took it facetiously, but you do seem to hold some visceral objection to gays (as did my Dad, though he was working on it). I’m trying to understand where it comes from. In his case, it came from being born in 1920.
Being born in 1920 would certainly do it. I was born 1970, grew up in a small middle-class/working-class town where gay people were considered the lowest of the low, even monsters, by most adults – scout leaders, etc. went to high school at the height of the AIDS crisis, when my classmates and I used that as a weapon in our exchange of cruel teen insults, and went to Catholic college, (in your home state) where they took a very dim view of that kind of thing, though they have since bent a little bit. By the time this whole process was done I was viscerally opposed.
I intellectually don’t “get” same sex attraction, and I can’t see the appeal of sticking a body part in the place where human waste comes out. I have not known many gay people in my life, in fact I can count the ones I know about on one hand and they haven’t impressed me – a relative who was forced into the closet by the rest of the family and became the family underachiever and screwup, a lawyer/office manager who was the stereotypical nasty gay man who screamed and cursed at anyone he could as long as he had more power than them or was safely out of reach on the phone but cowered like a girl when confronted by someone with more power or who could physically take him, two other lawyers who I keep my distance from, and one singer/dancer who came out after graduation… and died of AIDS at 26.
Now I’m getting told I don’t just have to tolerate this, I don’t have to accept it, I have to celebrate it or risk being deemed politically unsuitable to speak publicly or hold my job? On top of that I have to listen to and read this abusive and profane crap from guys like Savage who are just as big of haters as Nathan Bedford Forrest or Heinrich Himmler and be told somehow it’s RIGHT? The day might come when I might be able to “work on it” but I’m not going to be bullied and hated into working on anything, and that kind of abusive crap just makes me want to dig my heels in and say “hell, no!”
If gay marriage wins at all ballot boxes in five years, I’ll send you a beer in the mail so we can toast it together. I just don’t see that happening. But I’d love to be wrong.
Your logical problem however, is here:
“Once the government started requiring blood tests and handing out tax breaks and other goodies, marriage ceased being just a religious issue.”
That’s just not true. The government cannot take something, rule on it, and have it magically transform into a non-religious issue. If a state government put bible passages in a history textbook, would the bible cease to be a religious text and instead be under the scrutiny of science, and science only? (Because if that’d work, I have a new history textbook to submit to Texas.) What the government does in these situations is takes a religious ceremony, rule on it, and create two separate entities that is VERY hard to separate for the average person. In this case you have holy matrimony, and civil unions. If we clearly separated the two, it’s obvious that the government has a duty not to discriminate with civil unions… But we’ve gotten so hung up on the word ‘marriage’ it’s hard to figure out which thing people are talking about.
It’s not that hard. The word marriage originally meant opposite sex couples, because anything else was unimaginable due to prevailing taboos (which at the time were based on necessary biological imperatives—same sex unions didn’t provide offspring, and that endangered the tribe). This is the fault line for using a book that is thousands of years old as modern wisdom. Society is built on stable family units, so government has to define, encourage and protect them, as well as reward them. Now that we know nothing is wrong with same sex couple and they don’t threaten the survival of the species, the official limitations on marriage have to change, just like the limits on scientific knowledge have to change.The issue is driven by fact, not politics. Faith is one thing, and fine—ignoring fact is neither healthy for society nor religion.
Well, tell that to America. It SHOULDN’T be that hard, but in practise it is.
I’m trying to understand where it comes from.
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I think some men grew up in a time and possibly place where homosexuals were to be hated and feared because they were “freaks”.
They were the spreaders of disease and the molesters of young boys.
I think this came from teachers, religious persons, scout leaders, coaches, parents and older siblings.
(Why? The fear of someone different, fear of their own sexuality, lack of information and facts…who knows.)
Imagine a ten year old boy who is forming his opinions in life and hears the same rhetoric from every adult source.
It does get into their brain and they have to learn as adults that what they’ve learned previously was wrong.
And imagine next teens trying to prove themselves tough to their peers, to whom the slightest indication of lack of manliness is cause for torrents of insults.
And imagine that persisting into the teen years, even more so because of the fear of a deadly disease.
The day might come when I might be able to “work on it” but I’m not going to be bullied and hated into working on anything, and that kind of abusive crap just makes me want to dig my heels in and say “hell, no!”
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Yes, the harsh stance many have now adopted is not going to do anyone any favors.
I know the whole Chik Filet fiasco turned off a lot of people who before were either OK with gay marriage or at least neutral.
Machiavelli 101:
Could it be the virulent left’s worst fear is generally conservative acceptance of homosexuality? Could it be the virulent left seeks to add the stigma of bullying to the homosexual equality movement so that die hards become even more die hard? So that divisions may never be healed?
I don’t think so. The virulent left isn’t very good at running election — they would truly suck at evil scheming.
Odd assertion to make considering how the same kind of divisive tactics the virulent left has successfully employed for the better part of 4 decades to politically enchain the vast preponderance of the African American population.
I don’t see why they wouldn’t use what has worked in the past to continue division of the electorate against itself.
Without the diehards where would the professional assholes like Dan Savage be? Of course they don’t want the divisions to heal so they can always have something to rant and rave and curse against and be cheered on against. And, to paraphrase my old Scoutmaster when he spoke about being angry, if I sound like I have a personal problem with Dan Savage, it’s because I DO! I hate that man and everything he stands for and I hope one of these days when he delivers another one of his profane, hate-filled rants, that someone puts a bullet in him.
Actually not true, Maine, Maryland, and Washington State DID let the brown, stinky tide in by popular vote in 2012. It’s also true that these are all uber-liberal states and it was an uber-liberal year. Much as the idea of gay marriage makes me nauseous, I have less of a problem with it when it is authorized by popular vote, since it definitely is the people speaking, rather than some liberal activist judge ramming it down the populace’s throat so that he/she can continue to be invited to all the right cocktail parties.
I just can’t get behind that line of thought. While it might be preferable for the majority to agree not to be bigoted asses, certain rights are inherent in our humanity, and some are explicit in the constitution. People have the right not to be discriminated on by their government, regardless of majority opinion, and therefore the people who uphold the constitution have the duty to override the bigoted asses, even if they are the majority.
The reason gay marriage is a stick subject is because the states never really got around to actually separating church and state properly. And so we have two competing constitutional rights at odds. The government cannot discriminate and the government cannot interfere with religion. I don’t know that there’s ever a good answer to a question like this…. Even if it’s right that gay people should be able to get all the benefits of marriage (my position) I’m not sure that it’s right they get there by eroding religious protections.