I’ve got to disagree with most of my progressive friends. While I applaud Virginia Attorney General Mark Herring’s stance that gay marriage is unconstitutional, I don’t think it’s in his power to determine which laws he should defend and which ones he shouldn’t. His job is to defend the laws of the state whether he agrees with them or not.
People across North Carolina are calling for Roy Cooper to follow Herring’s lead and drop his defense of the anti-gay marriage amendment that passed in North Carolina in 2012. I hope he doesn’t. It’s not his job to determine whether or not the law is constitutional. That’s up to the courts.
The attorney general is elected to defend the laws of the state whether he or she agrees with them or not. Similarly, a criminal defense attorney appointed to defend an accused criminal has a duty to give the accused the best defense possible, regardless of whether the lawyer believes the accused is guilty or not. It’s how our system works.
In the case of Cooper, he has criticized several policies passed by the general assembly and signed into law by the governor. He’s charged his staff with defending those laws in spite of his own opinion because that’s his job and that’s what he was elected to do. The gay marriage ban shouldn’t be an exception.
It also sets a bad precedent. I don’t want some future Republican attorney general deciding which laws he should defend and which he shouldn’t. Can you imagine the outcry from the progressive community if a Republican attorney general chose not defend some law like the Racial Justice Act against suits accusing it of being unconstitutional?
Finally, I don’t like the legislature and the governor hiring their own attorneys to defend the voter suppression laws they passed. We have a staff in the Department of Justice whose job it is to build cases, not to make judgments. If those cases don’t pass muster with some court, so be it, but it’s their job to make the argument.
If the attorney general is going to pick and choose which laws to defend, what’s the point in electing an attorney general? Why not have each governor and each legislature just hire a lawyer who agrees with them? That way we can make it just one more high paying patronage job and further politicize state government.