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Editorial columns


Courts – not lawyers – make rulings on ‘history’

The Journal Gazette’s March 17 editorial criticizing my legal defense of Indiana’s traditional marriage definition scoffs that I don’t “get it”; observes that laws now being challenged might someday be overturned; and declares (repeating an overused expression) that by defending Indiana’s marriage definition from legal attack I am on the “wrong side of history.”

The editorial writer hasn’t thought this through.

Taking sides on the potential course of “history” is not the attorney general’s job. Defending the state and its laws is.

As Indiana’s attorney general, I took an oath to represent and defend state government and its statutes in court.

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.

When the state of Indiana 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 of the statute – 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 lawyers presume that they are judge and jury in their own cases.

The editorial praised the Kentucky attorney general’s decision not to continue defending 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 the 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 state and 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 laws. 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.

Or let’s look at California’s Proposition 8 constitutional amendment that defined marriage in the traditional way.

When it was challenged in federal court, California’s attorney general declined to mount any defense. When the U.S. Supreme Court heard the Proposition 8 case last year, it ruled that because the law was not defended by the State of 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 unanswered and left the nation in suspense.

How exactly is the lack of a legal defense on the “right side of history”?

As noted, my office will defend an Indiana statute, as we do every day in numerous cases, as long as a good-faith defense exists – and with the marriage definition law, it does.

Indiana courts previously have upheld Indiana’s marriage law, and the U.S. Supreme Court has previously permitted states to license marriage as between one man and one woman. While there are various challenges of multiple states’ laws currently working their way through the federal appeals court pipeline, until and unless the U.S. Supreme Court rules otherwise, the state of Indiana has the right and obligation to enforce its longstanding statute and defend it from plaintiffs’ lawyers.

Looking back at important cases in our nation’s past, when two opposing attorneys represented their clients to the best of their skill and ability, neither by virtue of their courtroom role was on the “wrong” side of history.

Both served as advocates before the court that made the rulings that ultimately made the history. When we lawyers take an oath to represent our client, we can’t shirk our duty no matter how much uninformed critics complain.

Greg Zoeller is the Indiana attorney general. He wrote this for The Journal Gazette.