Constitution Check: Must government lawyers defend laws they deem to be invalid?

Lyle Denniston looks at why some state attorneys general and the Attorney General of the United States have chosen not to defend some laws on the books, specifically in relation to same-sex marriages.

USDA/Justice Department Margins WorkshopTHE STATEMENT AT ISSUE:

“By virtue of his office, a state attorney general is the top lawyer for the client, the state.  Except for laws still on the books that are clearly invalid under existing judicial rulings, the only sensible legal position to impute to the state is that its laws – the provisions of the state constitution and the statutes consistent with those provisions – are valid and enforceable.  The attorney general’s obligations as a lawyer therefore require him to vigorously defend any of those laws against challenge under federal law so long as there are reasonable (i.e., nonfrivolous) grounds for doing so.”

 – Edward Whelan, president of the Ethics and Public Policy Center in Washington, D.C., in a column February 17 on the web page of The Weekly Standard, titled “Falling Down on the Job.”  The column commented on decisions by several state attorneys general to abandon the defense in court of their state’s ban on same-sex marriage.


In the legal system created and continuously shaped by the Constitution, it is a basic assumption that the law will produce more just results if there are two sides and they battle it out, through their lawyers, in “adversary” encounters that often wind up in court.  It takes two sides for such an encounter, though, so a case might not be able to go forward if one side gives up.

Sometimes, though, the legal dispute is very important — perhaps even a fundamentally important controversy about the meaning of the Constitution – and it seems to demand resolution.   If the government – federal or state – is on one side of such a dispute, because a law is at issue, what happens if the government’s chief lawyer concludes that the law is unconstitutional?   Is there a binding duty to recognize that, and give up?   Or is that lawyer obliged to put aside that view, and press on?

That was the dilemma that U.S. Attorney General Eric Holder, Jr., confronted two years ago this month, when he and his colleagues decided that the federal Defense of Marriage Act, which they had been defending in court, was unconstitutional.  And it is the dilemma that, in recent weeks, several state attorneys general have confronted when they concluded individually that their state’s ban on same-sex marriage was unconstitutional.  (They were following the lead earlier of the California attorney general, refusing to defend that state’s “Proposition 8” ban.)

Each one of them, of course, was well aware of the ethical obligation that an attorney has to zealously represent the client – in these cases, the federal government or the state government.  That also is a legal obligation on each as the government’s chief lawyer.  For the U.S. attorney general, the legal obligation is a constitutional command: as a Cabinet officer, the attorney general, too, is bound by Article II’s mandate that the Executive Branch “faithfully execute” the laws.  Similar duties are imposed on state attorneys general.

Each of those legal officers, however, also has to take an oath to defend the Constitution.  In the situation each faced, they concluded that they could not do both.  And, in each, these officers chose to stop defending their government’s law.

It is no surprise, though, that this choice has its critics – as in Edward Whelan’s challenge quoted above.  Aside from the complaint that this is a form of disobedience to duty, critics often suggest that it shows a lack of respect for the legislative branch – especially since, in most states and certainly at the federal level, the legislature does not have a legal right to go to court to defend its own legislative products.   And, it is suggested, an attorney general is also trying to usurp the role of the courts to decide which laws are valid and which are not.

This is not a new phenomenon in American history.  And, in many cases in which attorneys general have found themselves facing this dilemma, they have found a way to ensure that the court case does go on so that the legislature’s handiwork does get its “day in court.”

The answer is the simple expedient of regarding the law as still binding on the legal officer, and therefore that officer will continue to enforce it even while notifying the courts that the law’s defense will not be continued by the attorney general.

That is the choice that Attorney General Holder made regarding the Defense of Marriage Act after concluding that Congress had acted unconstitutionally in denying federal marital benefits to same-sex couples who already were legally married.  The case could continue because Holder continued to enforce the DOMA law as it applied to an estate tax imposed on the surviving spouse of a same-sex marriage, Edith Windsor of New York.

And that is the choice recently made by the attorneys general of Nevada, Oregon, Pennsylvania and Virginia, withdrawing their office’s support for state laws that forbid same-sex marriages.  In each case, the attorney general or some other state officer with a duty to enforce the ban has continued to do so and thus, in each instance, the court cases move on.

These state attorneys general made up their minds about the bans’ constitutionality after reading the Supreme Court’s decision last June striking down DOMA’s benefits ban.  The arguments that had been advanced in support of DOMA are almost exactly the same as those now being made against the state bans – and the Supreme Court rejected all of them, even though its DOMA decision stopped short of nullifying any state’s ban on same-sex marriage.

A final point: It will not always be true that a case will continue after an attorney general gives up the defense of a law.  If the law has been struck down when initially tested in the trial court, after an attorney general has refused a defense, there may be no one to appeal that case.  Once the law has been struck down by a court, it cannot be enforced.

That is what happened with California’s “Proposition 8,” when the Supreme Court refused to allow that measure’s proponents to carry on a defense.  Even so, that law had had its day in court, but lost.

It is hardly likely, though, that the defenders of a law like a same-sex marriage ban will abandon their criticism of attorneys general who have walked away from such a law.  But, at least for a state attorney general, there is always the potential corrective of the next election.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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