News and Tribune

Breaking News

Columns

April 1, 2014

AG: Justice system needs both sides represented

Several same-sex couples recently filed lawsuits seeking to strike down Indiana’s traditional marriage definition law. As Indiana attorney general, I have been asked why my office is defending the statute in court when some AGs in other states are not defending their states’ traditional marriage laws from similar lawsuits.

I explain that I took an oath to represent and defend Indiana’s state government and its existing statutes. I don’t make the laws — that’s the Legislature’s job — but I have a solemn obligation to defend those laws while there is a good-faith defense, and I cannot shirk my duty nor abdicate that responsibility to others.

This is not personal advocacy on my part or by the lawyers who work in my office. Whenever the state of Indiana is sued, you — the taxpayers and citizens of the state — are really being sued collectively, and you are entitled to counsel. The correct course of action is for the attorney general to provide a good-faith defense — within the resources already available — until and unless the U.S. Supreme Court decides to the contrary. The justice system cannot work if one side is not represented by counsel or if the attorneys presume that they are judge and jury in their own cases and fail to zealously advocate for their clients.

Some have asked if in providing this defense I am on “the wrong side of history.” They note my counterpart, the Kentucky attorney general, recently announced he no longer would defend his state’s traditional marriage definition. But even he defended his state’s marriage law at the federal district court stage, and his decision not to continue representing his state’s position on appeal does not mean the law will go undefended.

Instead, the Kentucky governor had to hire outside counsel to defend the statute in court. Was the Kentucky attorney general on the “wrong side of history” when he represented his client, but suddenly on the “right side of history” when outside lawyers were called in at significant cost to Kentucky taxpayers to do so?   

Unlike Kentucky, Indiana does not need outside counsel to defend its own duly-enacted laws the Legislature passed. My office can do so readily within our existing budget, approved by the Legislature in advance, using our own salaried attorneys who do not charge billable hours and who would be paid the same whether these lawsuits were filed or not.

It’s worth noting what happened in California where the Proposition 8 constitutional amendment defined marriage in the traditional way. When that definition was challenged in federal court, California’s attorney general declined to mount any legal defense. When the U.S. Supreme Court heard the Proposition 8 case last year, it ruled that because the law was not defended by the state of California, the law’s private defenders lacked legal standing, and there could be no conclusive ruling on Proposition 8’s constitutionality.

That left the question of state-level marriage definitions muddled and left our nation in suspense. How exactly is the lack of a legal defense on the “right side of history”?

My office will defend an Indiana statute, as we do every day in numerous cases, as long as a good-faith defense exists — and with the marriage definition law, it still does. Indiana courts previously have upheld Indiana’s marriage law, and the U.S. Supreme Court has previously permitted states to license marriage as between one man and one woman.

While there are various challenges of multiple states’ laws now working their way through the federal appeals court pipeline, until and unless the U.S. Supreme Court rules otherwise, the state of Indiana has the right and obligation to enforce its long-standing statute and defend it from plaintiffs’ lawyers.  

When plaintiffs challenge statutes, I never complain; federal courts exist to decide such questions. I hope that Hoosiers on all sides of this controversial issue will show civility and respect toward each other while the court does its work.

But when two opposing attorneys represent their clients to the best of their skill and ability, neither lawyer is by virtue of their courtroom role on the “wrong” side of history. Both serve as advocates before the court that makes the rulings that ultimately make the history. When we lawyers take an oath to represent our client, we can’t shirk our duty.

— Greg Zoeller is attorney general of Indiana and a Southern Indiana native.

1
Text Only | Photo Reprints
Columns
LOCAL MAGAZINES
Easter 2014 photos


Click on any photo to purchase it.

SPECIAL CONTENT
Twitter Updates
Follow us on twitter
Hyperlocal Search
Premier Guide
Find a business

Walking Fingers
Maps, Menus, Store hours, Coupons, and more...
Premier Guide
AP Video
Texas Scientists Study Ebola Virus Smartphone Powered Paper Plane Debuts at Airshow Southern Accent Reduction Class Cancelled in TN Raw: Deadly Landslide Hits Indian Village Obama Chides House GOP for Pursuing Lawsuit New Bill Aims to Curb Sexual Assault on Campus Russia Counts Cost of New US, EU Sanctions 3Doodler Bring 3-D Printing to Your Hand Six PA Cops Indicted for Robbing Drug Dealers Britain Testing Driverless Cars on Roadways Raw: Thousands Flocking to German Crop Circle At Least 20 Chikungunya Cases in New Jersey Raw: Obama Eats Ribs in Kansas City In Virginia, the Rise of a New Space Coast Raw: Otters Enjoy Water Slides at Japan Zoo NCAA Settles Head-injury Suit, Will Change Rules Raw: Japanese Soldiers Storm Beach in Exercises Raw: Weapons Fire Hits UN School in Gaza Raw: Rocket Launches Into Space With Cargo Ship Broken Water Main Floods UCLA
2013 Photos of the year


Take a look at our most memorable photos from 2013.