This is one of those legal/ethical conundra I have very mixed feelings about. If you — as a chief governmental executive or as a government attorney — feel that a particular law is unconstitutional, do you still have an ethical requirement to protect it?
On the one hand, because I admittedly support their position (considering such a ban to be a violation of equal protection laws), my inclination is to get up and cheer.
But the thing is, this sort of mess cuts in all directions — one can imagine both state attorneys who would not defend a law banning gay marriage, and state attorneys who would not defend a law preventing discrimination against gays. Calling one the "good guys" and the other the "bad guys" misses the point, and turns a system of laws into a system of personal preferences.
It also gets uncomfortably close to the question of religious dissent and conscience-based exemptions from laws. After all, if a state attorney can ethically decline to defend a state law she thinks is unconstitutional because she swore an oath to defend the constitution, then why can't a pharmacist ethically decline to provide a prescription for something she feels is against her personal religious oaths? That's a slippery slope that leads in too few steps to a complete breakdown of law and order, if not society.
And it's true on the national level as well. While on one level I'm pleased with the Obama administration's decision not to defend DOMA in court, I acknowledge I would feel very differently if it were a Romney administration deciding not to defend ACA or the Civil Rights Act in court.
I don't have an easy answer here, just a lot of thoughts. (h/t +Jim Feig)
Embedded Link
Ill. prosecutors refuse to defend gay marriage ban
Twenty-five Illinois couples were prepared for a long legal fight when they joined lawsuits challenging the state's ban on gay marriage. Turns out they won't get one — at least not from the attorneys …
Google+: View post on Google+
To me, the answer is obvious. Defend the Constitution while working to overturn anything you see as unconstitutional. Or is that too simplistic?
The ethics of attorneys, as I understand it, requires that they advocate zealously for their client and, if they cannot do so, they inform their client that they cannot advocate on their behalf.
Thus, there is no ethical breach in refusing a case. The breach would be accepting a case you could not zealously advocate.
Mind you I am neither an attorney nor ethicist, so I could be mistaken.
In California re Prop 8, both the governor and the state Atty. General refused to fight on its behalf. They both felt the ban was unconstitutional, and did not wish to waste thinning state resources on what they felt would be a losing battle.
That makes sense, +Gary Roth, as far as it goes. I still suggest it's a bit more problematic for folks whose "clients" are their employers (and who are government employees whose "clients" are elected representatives of The People).
The theory goes that once an AG is confirmed, they should be independent from politics. As we know, that's not true.
The reality though is the founders, rhetoric aside, really were concerned with the dangers of government control. Remember, the President's willingness to execute serves as another control against bad laws (which the founders rightfully feared more than unenforced good laws).
Also, keep in mind that the President's policies are the most arbitrary, but also the most short-lived. This was also deliberate, so as to mitigate the possibility of one man's obstruction of justice.