When Is It Appropriate For The Executive Branch To Refuse to Defend the Law?

This certainly isn't the first time the question has been asked, but it is coming up frequently in relation to the civil rights movement of my generation: when is it okay for the members of the executive branch to refuse to defend challenges to properly-enacted laws?

During last year's challenge to Prop 8 in the California courts, California Attorney General Jerry Brown--the individual empowered to enforce and protect our laws and constitution--refused to defend the constitutionality of the ballot prop. In fact, he eventually argued against the constitutional amendment, suggesting that it could not be reconciled with existing portions of the California Constitution. (Yes, his argument was incoherent.)

Similarly, in this year's federal challenge to Prop 8, where Brown and Governor Schwarzenegger are both named plaintiffs, they aren't defending Prop 8. The governor has announced that he intends to remain "neutral" on the question of its constitutionality under the U.S. Constitution. Instead, several groups which helped pass the amendment last year are leading its defense.

On the one hand, pro-Prop 8 groups would probably not have appreciated AG Brown's involvement on their side, especially if his heart wasn't in it. On the other hand, isn't it his duty to defend the law? Don't forget the financial element: as a result of AG Brown's decision these groups bear the burden of defending the law by themselves, which would not ordinarily be the case.

A similar situation is occuring in Wisconsin. Attorney General J.B. Van Hollen has decided not to defend the state's new domestic partnership law. Like AG Brown with Prop 8, AG Van Hollen believes the domestic partnership law is unconstitutional and cannot be reconciled with Wisconsin's constitutional amendment prohibiting gay marriages or legal statuses "substantially similar" to marriages.

The domestic partership law's proponents say that the partnerships aren't "substantially similar" to marriages because they come with only 40 of the approximately 200 legal benefits of marriage. (Although, they are certainly what we think of as key legal benefits of marriage: tax status, late-life benefits, etc.) AG Van Hollen disagrees.

Chapter 770 [the domestic partnership law], does not define the legal relationship in terms of benefits, but in terms of criteria for entering the relationship. Those criteria include (1) two adults, (2) of the same sex, (3) who have the capacity to contract, (4) who are unmarried and not in another domestic partnership, (5) who are no closer in relation than second cousins, and (6) who share a common residence. Wis. Stat. § 770.05.

“Marriage, so far as its validity at law is concerned, is a civil contract … which creates the legal status of husband and wife.” Wis. Stat. § 765.01. A marriage relationship’s criteria requires (1) two adults, (2) of the opposite sex, (3) who have the capacity to contract, (4) who are unmarried, (5) and who are no closer in relation than second cousins. See Wis. Const. Art. XII, Sec. 13; Wis. Stat. §§ 765.01, 765.02(1), 765.03.

These criteria are not only substantially similar to the criteria necessary to enter a domestic partnership, they are nearly identical.

So the argument is over whether the marriage amendment prohibits using criteria "substantially similar" to marriage to apportion legal benefits or whether the marriage amendment was intended to prevent giving legal benefits approximating those that come with marriage.

In any case, AG Van Hollen will not be defending it (and I suspect he just announced his candidacy for governor). Wisconsin's domestic partnership law became effective August 3. The courts declined to stay the law while the lawsuit is pending.

Finally, the Obama Department of Justice has recently filed a brief suggesting that the federal Defense of Marriage Act is discriminatory and should be repealed...in a case where the department is defending DOMA. The department generally defends the constitutionality of laws so long as even a plausible argument can be made. Still, it seems like less than full-throated support to walk into court and tell the judge a law is bad, but not unconsitutional. Especially when the discriminatory effect of laws toward gays is increasingly being taken by courts as unconstitutional. (See Romer, Lawrence, etc.)

So what to do? Let the interested parties duke it out while the executive branch decides for itself whether to step in? Perhaps institute a loser-pays rule, requiring the losing party to pay for the prevailing party's costs, to deal with the fact that third parties are now having to step in and do the government's job for it. I'm not sure. What do you think?

posted by Gabriel Malor at 05:54 PM

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