About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

21 Barry L. Rev. 1 (2015-2016)

handle is hein.journals/barry21 and id is 1 raw text is: THE EROSION OF THE RULE OF LAW WHEN A STATE ATTORNEY GENERAL REFUSES TO DEFEND THE CONSTITUTIONALITY OF CONTROVERSIAL LAWS Rena M. Lindevaldsen* INTRODUCTION On June 26, 2015, the Supreme Court of the United States in Obergefell v. Hodges,' declared that it was unconstitutional for states to continue to define marriage as the union of one man and one woman.2 Although there is much to be written on concerning the decision in Obergefell, including the strength of the legal analysis and the sharp division among the bench on the issues presented, this article will focus on one aspect of the marriage litigation that ultimately culminated in the Obergefell decision declaring a right to same-sex marriage-namely, the refusal of several state attorneys general to defend the marriage laws and amendments in their states. Although the Supreme Court has issued its decision on the marriage question, the broader questions of whether an attorney general can refuse to defend the constitutionality of a law and whether the people have recourse under those circumstances present ongoing issues that strike at the core of a government system based on separation of powers and the rule of law. In the past few years, more than one-third of the state attorneys general faced the question of whether to defend the state marriage laws.3 In February 2014, United States Attorney General Eric Holder added fuel to the ongoing controversy by encouraging state attorneys general to refuse to defend any laws they believed were unconstitutionally discriminatory.4 In response, the state attorneys general took different approaches to their duty to defend.5 The Kentucky, Florida, Pennsylvania, Wisconsin, and Virginia attorneys general exemplify the various responses to federal litigation challenging state marriage laws. * Associate Dean for Academic Affairs, and Professor of Law, Liberty University School of Law. J.D., magna cum laude, Brooklyn Law School. The author wishes to thank research assistants Alexis Johnson and Alexandra Hubbard for their assistance with this article. 1. Obergefell v. Hodges, 135 S. Ct. 2584 (2015). 2. Id. at 2608. 3. See, e.g., Edith Honan, State Attorneys General Forced into Spotlight on Marriage Debate, REUTERS (June 2, 2014), http://www.reuters.com/article/2014/06/02/us-usa-gaymarriage-attorneysgeneral- idUSKBNOED22D20140602 (discussing 12 cases filed in recent months); Austin Nimocks, History and Recent Developments in Same-Sex Marriage Litigation, FEDERALIST SOC'Y (May 28, 2014), http://www.fed- soc.org/publications/detail/history-and-recent-development-in-same-sex-marriage-litigation (discussing and listing the various pending cases). 4. See Matt Apuzzo, Holder Sees Way to Curb Bans on Gay Marriage, N.Y. TIMES (Feb. 24, 2014), http://www.nytime s.com/20 14/02/25/us/holder-say s-state -attorneys -general-dont-have -to-defend-gay-marriage - bans.html. 5. See id.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most