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.

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