Stands like that of Pennsylvania Attorney General Kathleen Kane are courageous symbols for elected officials to take as the nation struggles ever so slowly to reach complete marriage equality nationwide. However, such heroic stands may actually end up delaying the ultimate nationwide recognition of same sex marriage.
In the recent Supreme Court decisions on the federal Defense of Marriage Act (DOMA) and California's voter initiative banning same sex marriage, Proposition 8, the issue of standing came up in both cases. In both the DOMA case and the Proposition 8 case, the normal appellants (the parties who were sued and lost the case at the trial level) refused to file appeals of their losses. In DOMA, this was the Attorney General Eric Holder, and in Proposition 8 it was the State of California represented by Attorney General Kamela Harris. Both of these decisions were historic and incredibly unusual in that it almost never happens that a representative of the sued party decides part way through the proceedings that the law they are charged with upholding is unconstitutional and therefore refuse to defend it.
In the two cases, different groups rose to the occasion to appeal the lower court decisions and thereby defend the laws as written. In DOMA, Congressional Republicans hired their own counsel and filed the appeal on behalf of the United States. In the Prop 8 case, it was citizens groups which had organized turnout and worked to get the amendment on the ballot in California. In each case, the outcome was different. In the DOMA case the Court found that the appellants had standing to appeal, while in the Prop 8 case the court found that the appellants did not.
Standing, or the right to bring an appeal, was a hard fought issue in both cases. If the court had reached a different consensus on the issue of standing in the DOMA case, and the lower court rulings were left in place, what would have happened was that we would have been left with a mish mash of lower court rulings, some upholding the constitutionality of DOMA and some not, leaving the issue unresolved.
But, what is more interesting is had the State of California decided to pursue the appeal in the Proposition 8 case, in which the court found that citizens groups had no standing to appeal challenges to the Constitutionality of a state statute, there would have been no issue of standing at all. California certainly had the right to defend its own laws against constitutional challenge. That would have forced the court to address the constitutionality of state bans on same sex marriage on the basis of violations of the guarantees of equal protection under the Fifth and Fourteenth Amendments. Looking at the court's holding on DOMA, finding that it did in fact violate the Fifth Amendment's guarantee to equal protection on a Federal level, it is more than likely that the Court would have found that California's Proposition 8 also violated the imposition of this guarantee on the states, making same sex marriage legal nationwide.
There could be, depending on your point of view, arguments made that this was a fortunate decision on the part of the State of California not to defend this law. Because it allowed the court to move incrementally, essentially punting the decision on the application of the Constitutional issues on state law to a later date when the Supreme Court decision would have time to catch up to public opinion, some would argue that it is overall a good thing for the proponents of marriage equality and the nation as a whole. Some could also argue that the standing issue may have also prevented the court from striking down the 9th circuit's opinion finding Prop 8 unconstitutional, which would have been a big loss for the proponents of marriage equality.
However, at some point, a state is going to have to defend such Constitutional challenge in order for there to be a definitive answer on the application of these rights nationwide. By not defending the lawsuit brought against the State of Pennsylvania, the state Attorney General risks having at best a similar outcome to that of Proposition 8 -- a District Court decision which cannot be appealed due to the lack of standing of anyone to appeal it. This is great for folks in Pennsylvania, but doesn't really push the issue forward.
This also brings up another issue as it relates to the function of the law as a whole. Very often attorneys are faced with the question, "How can you defend someone like that?" or "How can you defend someone you know is guilty?" Spending many years as a criminal defense attorney, I am very familiar with those questions and I understand completely the answers. The fact is that our system of justice only works in both sides in an adversarial system are represented zealously and to the full extent of the law. Any failure to do so, results in legal error and injustice. For instance, if a criminal defense attorney were to fail to put forth all of the defenses that his or her client is due because he or she has come to the conclusion that the defendant is guilty or should be put away, not only should that attorney lose their license, but the case will almost certainly be overturned on appeal (and should be), and the defendant who would have otherwise been convicted will likely walk free. The only way to ensure a conviction is to put forth every defense to which the defendant is entitled and make sure that the State proves their case against the Defendant. I know that sounds counter-intuitive, but that is the way the law works in an adversarial system such as ours.
In the same way, the only way that the ultimate question in marriage equality -- the issue of whether the Court's holding that the Fifth Amendment's guarantee of equal protection, also applies through the Fourteenth Amendment to the states -- will make it before the Supreme Court is for the states to defend their laws vigorously and to the full extent of the law. I would go so far to say that it is the duty of the state and federal Attorneys General to do so. By acting in the role that should be reserved for the appellate judges, rather than in the role for which they were elected or appointed (to defend and enforce the laws of their state or country) they are showing an amazing lack of confidence in the integrity of the judicial system, and actually holding back the cause in which they claim belief.
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