A Dangerous, Chaos-Inducing Virus Is Infecting The Political Class (Forbes.com) August 15, 2013Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
Tags: Public Policy
A dangerous virus is spreading through public officials, one that will both weaken the legal system and promote chaos and confusion. Increasingly public officials, from the president and attorney general of the United States down to mayors and county administrators, are taking the position that they will not enforce or defend laws that they personally believe are unconstitutional.
Take same sex marriage in Pennsylvania as a case study. In 1996, the state adopted a law declaring that marriage is between a man and a woman, and that bans same sex marriage. The U.S. Supreme Court’s decision this summer finding the federal Defense of Marriage Act (DOMA) unconstitutional nevertheless affirmed the right of states to make their own decisions about same sex marriage. So presumably, nothing changed in Pennsylvania, at least not until there was some further legislative initiative or, as Justice Antonin Scalia suggested in his dissent in the DOMA case, until the Supreme Court dropped another state law shoe in the future.
But not so fast. For here comes Pennsylvania Attorney General Kathleen Kane (D) saying she believes Pennsylvania’s law banning gay marriage is “wholly unconstitutional” and she refuses to defend it in court. In response, Governor (and former state Attorney General) Tom Corbett (R) says he will step forward and defend the law on the premise that “all laws are presumed to be constitutional and will be defended.” If a tempest in the executive branch teapot isn’t enough, a county register of wills in the state says he has read the Supreme Court’s DOMA opinion—apparently skipping over the part where the Court said states were free to make their own decisions– and he has concluded that a state ban on same sex marriage is unconstitutional, so he has begun issuing licenses to gay couples, now in excess of 100 of them. And Pennsylvania mayors are stepping forward to perform them. No one knows what legal status, if any, these marriages performed in violation of state law will have.
What’s wrong with this picture? Legally, a lot. First, state officials take an oath to support and defend the constitution and the laws of their jurisdiction. Law enforcement officials, including attorneys general, are charged with enforcing the law. Every lawyer learns in law school that an important part of his or her duty is to defend unpopular clients. A single lawyer’s job is not to do justice, but to do his or her part to be sure the system—including lawyers for both sides, judges and juries–delivers a just result. It’s the same with unpopular laws. It’s not the job of a single official to decide something is unconstitutional, but an entire legal system.
There are also obvious policy problems as well. Most immediately, no one really knows whether same sex marriages performed in Pennsylvania will turn out to be legal or not, leaving all kinds of loose ends for families, benefits, estates and so on. At a deeper level, what kind of a precedent does it set when a single county official in a state can choose to ignore a law he personally finds unconstitutional? Even deeper still, when the governor and attorney general of California refused to defend its constitutional provision barring same sex marriage, and the U.S. Supreme Court found no one else had legal standing to do so, a ballot initiative supported by nearly 7 million Californians was effectively killed by a single federal judge. What kind of future might there be for ballot propositions when this sort of end-run can negate them?
Laws cannot be enacted by a single individual, nor should they be declared unconstitutional by a single individual. Until the legal system has worked its way through to decide the constitutionality of a law, the responsibility of individual officials within the system is to do their job, play their proper role, and follow the law.