Because it’s his job

by | Jan 27, 2014 | Editor's Blog, Gay Marriage, NC Politics | 9 comments

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.


  1. Diane Walton

    This has been a great discussion.

  2. Diane

    Have you changed your opinion at all after reading Meghan’s post?

    • Thomas Mills

      No, but I respect her opinion. While I agree with Meghan’s assessment of the law, I’ve argued with plenty of smart people who don’t. They say it’s not about denying anybody opportunity or targeting a group but protecting an established social norm. I don’t agree with them, but until a court says otherwise, it’s not the AG’s job to determine who is right and who is wrong. That’s why we have courts.

  3. Meghann Burke

    I appreciate your post and respect your well-considered position. As an attorney, I empathize with the position AG Cooper is in. However, Mr. Cooper should refuse to defend Amendment 1 not because he thinks it’s “bad policy,” but because it is his job to support the Constitution. Mr. Cooper took an oath of office (NCGS 11-7) to “support the Constitution of the United States” and to defend the Constitution of North Carolina “not inconsistent with the Constitution of the United States.” I cannot find another law which so blatantly, explicitly, facially singles out an entire group of people on the sole basis of a characteristic which the Supreme Court has already determined to be constitutionally suspect. Amendment 1 was motivated by nothing other than sheer disdain for same-sex couples – a legislative motive ruled unconstitutional in the 1996 case of Romer v. Evans. Moreover, to an earlier poster’s point, the analogy is less appropriate to that of a criminal defense attorney, who has a duty to zealously advocate for an individual client, than to that of a prosecutor, who has a duty to the justice system as a whole. Prosecutors dismiss cases for a myriad of reasons: unconstitutionally obtained evidence, for example. Cooper routinely refuses to enforce unconstitutional laws on our books. Private counsel whom the General Assembly would retain to defend their actions, should Cooper decline to defend the unconstitutional law, do not take the oath of office Cooper is bound by as Attorney General. As a public official, his duties are greater than that of private counsel, and they are owed not only to those who enforce discriminatory laws, but also those who are subjected to them.

    • Gordon

      What Meghann said.

    • Thomas Mills

      Thanks for reading and commenting, Meghann. I hope you’ll keep coming back.

  4. troy

    Resources (aka time) should not be squandered on a case that is without merit for the simple purpose of paying tribute to an ideal. Here is a case (Gay Marriage Act) that has been held unconsititutional by one judge in one court. While that does have a certain amount of merit, it is by no means final.

    I see the merit in what Thomas is saying. A decision from the 4th Circuit on this matter would be law in the entire 4th Circuit. An appeal to the USSC would bring finality to such laws across the nation. That would mean a loss for the Attorney General however, but from a Constitutional perspective, it would seem no other conclusion would be rational.

  5. MikeV

    I agree with you, but not for your reasons. I agree only because of the reflection of the issue, in my mind, on the issue of nullification of federal laws at the state level. IMO, one can’t, on one hand, support an AG opting to pick and choose what state laws to defend, and then, on the other hand, oppose nullification. And nullification must be opposed for the sake of the union.

  6. HunterC

    AGs and DAs pick and choose which laws they are going to prosecute and/or defend every day. Recall the dismissals of SOME of the Moral Monday protests of last week.

    DAs and AGs choose which charges to bring in criminal cases all the time. Republicans and Democrats alike.

    Why should the clearly unconstitutional Marriage Amendment be any different?

    By your logic, Cooper should be prosecuting people for sodomy just because it’s still on the books in NC.

    Cooper’s wrong and so are you.

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