Gay marriage rights: Illinois prosecutors refuse to defend ban

While I'm pleased they don't support the ban, I'm conflicted over their refusal to defend it. That's their job, that's what they were elected to do. It's not their duty to decide the law is just or unjust or decide which laws they want to defend. If the AG doesn't like speeding tickets, does that mean she doesn't have to uphold speeding laws? Obviously not, but at the same time, if they are unwilling to defend the law and were forced to anyway, wouldn't that mean the law isn't going to have the best defense possible? That sets a very dangerous precedent for future cases where the right and wrong sides aren't so clearly defined.

 

Their official view is that the statute is in conflict with the state constitution. Therefore, they are defending the law which gives all the others authority.

In any event, justice is not served by the slavish application of statutes.

 

I agree that this is sticky situation. Technically, the AG's job is to provide to the court the official legal opinion of the state's government. I believe they are entitle to say that in view of the governor, the legislature made a mistake in passing the law.
I wonder if the Illinois legislature will step in to defend the law like what happened in the DOMA cases.

 

they swear the oath to defend the states constitution. When something can be shown to be unconstitutional (such as in states that have clauses that prohibit application of laws inequally), there is no requirement for any offical to defend it.

 

Except that the AG is part of the executive branch of government whose job is to carry out the laws passed by the legislature. The judicial branch reviews whether laws passed by the legislature are valid or in conflict with the constitution. The executive branch doesn't get to make the law or judge the law; just enforce the laws that are passed until repealed or struck down by the court. Constitutionality is the purview of the judiciary; the AG doesn't get to decide on their own whether a law is constitutional. That would be an overreach of the executive branch's power.

 

Actually, I think the Attorney General should defend the law but just throw the defense. No attorney general is required to argue correctly.

 

Reminds me of one episode of Star Trek where the android Data had his rights come into question because he's a machine. Someone wanted to use him (in a possibly harmful way) for research and it was challenged. Data's friend Commander Riker was the First Officer, and therefore had to defend the decision that Data had no rights. It was more dramatic because if he didn't then the case wouldn't go through.