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Monday, March 17, 2014

Courts - More on: Is it the Kentucky AG's duty to defend every law, or does he have discretion?

Updating yesterday's ILB post, the Fort Wayne Journal Gazette today has a long editorial - some quotes:

Two neighboring states. Two attorneys general. Two very different reactions to legal assaults on their man-woman-only marriage laws.

In Kentucky, Attorney General Jack Conway comes to tears as he discusses his decision not to appeal a federal judge’s decision that his state was constitutionally obligated to recognize gay marriages that had been performed in other states.

North of the Ohio River, Attorney General Greg Zoeller rushes to defend Indiana’s anti-gay-marriage law against all challenges.

Both men say they are acting out of conviction. But the tide of history, and a truth that goes deeper than the law books, are on Conway’s side, not Zoeller’s. * * *

After Conway read the decision, he declared that “Heyburn got it right” and that “I must draw the line when it comes to discrimination.” Moreover, he said, “in light of other recent federal decisions, these laws will not likely survive upon appeal. We cannot waste the resources of the Office of the Attorney General pursuing a case we are unlikely to win.” Unfortunately, Kentucky’s governor, Steve Beshear, quickly announced that he would hire private counsel to appeal Heyburn’s ruling.

But Conway’s point was made.

Zoeller disagrees with that approach. He has had Indiana join other states in filing amicus briefs with the Supreme Court on behalf of marriage-limiting laws in other states. [See ILB comment below] He announced that he will defend the law against a state suit filed by four same-sex couples. Before he even received service of the suit, he announced that he would defend the law against a similar suit filed in federal court. Friday, three other federal lawsuits were filed against the law, including one that includes two Fort Wayne plaintiffs, Monica Wehrle and Harriett Miller, who was the founding director of the Fort Wayne Women’s Bureau Inc. The attorney general’s office did not immediately comment on those latest suits. But if there were a challenge against Indiana’s law filed on Mars, Zoeller would no doubt become the first attorney general to mount an interplanetary defense.

ILB comment: Our Attorney General has not joined other states in filing amicus briefs supporting prohibitions against same-sex marriage. Zoeller, on behalf of the State of Indiana, has authored the amicus briefs, and invited other states to join. From a March 13th ILB post:
It is worth noting, however, the AG Zoeller has authored and filed an amicus brief on behalf of the State of Indiana in the 9th Circuit in 2010, supporting California's Prop. 8. AG Zoeller authored and filed amicus briefs on behalf of the State of Indiana in both of the same-sex marriage cases before the SCOTUS last term.

And most recently, AG Zoeller has authored and filed an amicus brief in the 9th Circuit on behalf of the State of Indiana, supporting the position of the State of Nevada (where the Nev. AG has declined to appeal), and in the 10th Circuit, supporting the positions of both Utah and Oklahoma in opposing same-sex marriage.

In short, it appears that our Attorney General could not have better prepared himself to defend Indiana against the five lawsuits filed this month that call for recognition of same-sex marriage in Indiana.

Posted by Marcia Oddi on March 17, 2014 08:33 AM
Posted to Courts in general