On September 4, a court in Pennsylvania will consider whether a county registrar of wills may issue marriage licenses to same sex couples in contravention of state law because he has decided that law is unconstitutional. This official has now issued over 100 such licenses and other public officials (mayors) have used them to perform same sex wedding ceremonies. The legal challenge by the Pennsylvania Department of Health, which has overall responsibility for marriage laws and licensing, is loaded with constitutional, legal, social, and marital consequences, all of which deserve careful consideration.
At the same time, the Governor and Attorney General of Pennsylvania have exchanged political blows over whether that state law banning same sex marriage should be defended in court and, if so, who has the responsibility to do that. The attorney general says Pennsylvania’s 1996 law stating that marriage is between a man and a woman is “wholly unconstitutional” and she will not defend it, even though the recent Supreme Court decision in Windsor v. United States said states were free to make their own decisions about gay marriage.
This follows on the heels of President Obama’s and Attorney General Holder’s decision to not to defend the federal Defense of Marriage Act (DOMA) in the years prior to the recent determination by the U.S. Supreme Court that the law is unconstitutional. And similar questions arose in the recent California Proposition 8 case when that state’s governor and attorney general declined to defend the law because they felt it was unconstitutional, with the remarkable result, handed down by the Supreme Court, that no one had standing to defend that part of the California Constitution in court.
It looks like a virus is spreading among public officials creating delusions that any one of them may unilaterally decide a law is unconstitutional and decline to follow the law or defend it in court. Setting aside for a moment the same sex marriage context of these actions—we could be talking about environmental laws or gun control or taxes—is it really the case that a single federal, state, or county official is free to make a judgment about the constitutionality of a law and decline to execute, enforce, or defend it? Are we no longer what founder (and second president) John Adams called “a nation of laws and not of men”?
First and foremost, a unilateral decision by a public official not to follow or defend a law he or she considers unconstitutional is a constitutional problem. Part of the safeguards built into our constitutions, both federal and state, is a separation of powers among the three branches of government: legislative, executive, and judicial. Each branch has a purpose and generally no one branch alone can make law.
By the same token, no single branch, save the judicial, should be able to undo a law. This is part of the controversy surrounding President Obama’s recent decision to suspend aspects of Obamacare, which a member of the executive branch should not be able to do to a law passed by the legislature and signed by the president. It smacks of exactly the sort of monarchical power the founders sought to avoid.
The only branch of government able to declare a law unconstitutional on its own is the judiciary. Judges have legal and constitutional training and experience that is not required of those in the executive branch. Judicial procedure allows for extensive testimony, a “day in court” for both sides, and a deliberative weighing of the evidence.
Even so, the judiciary’s power to declare a law unconstitutional troubles us from time to time, such as when the legislature and president overwhelmingly support a law that a single federal judge strikes down. This is why the California Proposition 8 case was so disturbing. In the end, when the state’s governor and attorney general would not defend the law, and the U.S. Supreme Court found that no one else had standing to defend it, the decision of a single federal judge that the law was unconstitutional became the final, unappealable result. No matter which side of Proposition 8 you were on, it should be troubling when nearly 7 million Californians vote something into the state constitution that is voided by a single judge without appeal.
A more specific constitutional problem with public officials who will not enforce or defend laws they believe are unconstitutional is the conflict with their own oaths of office. Virtually all executive branch officials take an oath to support and defend the constitution and the laws of their jurisdiction. For example, the governor and attorney general of Pennsylvania both “solemnly swear that I will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that I will discharge the duties of my office with fidelity.”
One could perhaps parse these words like a trial lawyer, but your average citizen would believe that these two officials were agreeing to support and defend the laws, in the same way that most of us were taught to follow the laws or else change them, according to the legal system.
In fact, if a public official’s responsibility vis-à-vis a particular law is only to carry it out, his duties are then considered “ministerial,” leaving no room for interpretation or disagreement. One of the issues in the case of the Pennsylvania registrar of wills is whether his duties with respect to marriage licenses are purely ministerial. Similar cases before the Supreme Courts of California (2004) and Oregon (2005) found officials who issued marriage licenses to have only ministerial responsibilities, such that their only choice was to carry out the law as written, not to object to it on constitutional or other grounds.
Again, a similar argument has been made with respect to the president and Obamacare—that once the law was passed and signed, the president’s duty was simply to execute it, leaving no room to suspend or even delay it, since specific dates of execution were clearly incorporated into the law. It would be difficult to conceive of an issuer of marriage licenses having much discretion—it is really a matter of checking boxes and issuing papers—but this is part of the argument the Pennsylvania court must resolve.
The responsibility of legal officers such as attorneys general to defend the law can be more fully appreciated in the context of legal duties and the legal system more broadly. A cardinal principle of the legal profession is that everyone deserves representation and a day in court. This is often stated as the attorney’s duty to defend even the most unpopular client. The idea is that the legal system does not depend on each attorney making his or her own individual judgment about the guilt or innocence of each party, but rather it relies on the cumulative effect of everyone in the system doing his or her job at the highest possible level.
This is why a lawyer doesn’t find it unethical to defend a guilty client. He knows that the system only works if even a guilty party gets the best possible representation, as well as the most vigorous prosecution, and that judges and juries are prepared to do justice in the end. The system only works when each participant does his or her part. In the case of gay marriage legislation, let the law be attacked by those who find it discriminatory, but then let it be defended by those elected or chosen and sworn to do so. Then the legal system as a whole, not one individual, is able to do justice. All of this is circumvented when those charged with the duty to defend refuse to play their part.
Beyond the constitutional and legal arguments, allowing public officials to make their own unilateral decisions about constitutionality creates policy chaos. In Pennsylvania, for example, no one knows for sure whether same sex marriages performed against state law, but under licenses issued by a county, are legal. And, of course, all sorts of personal and legal questions flow from that, multiplied by the number of such marriages performed.
When the California Supreme Court told the Mayor of San Francisco he could no longer issue licenses for same sex marriages in violation of state law, part of the court’s order was that illegal marriages already performed were declared null and void and that the records had to be corrected to reflect that. One can only imagine the number of public officials who might disagree strongly with a particular law and find a reason, constitutional or otherwise, for why it should not be enforced or defended. Again, regardless of which side of a law you may support, this approach to public policy invites the very chaos and lack of dependability and stability that the law is designed to prevent. It simply cannot stand.
Allowing public officials to avoid their duty to defend the laws also weakens the legal system. In Pennsylvania, for example, you have the attorney general refusing to defend a “wholly unconstitutional” law, while the governor is left to defend it on the grounds that “all laws are presumed to be constitutional and are to be defended.” This sort of dissonance among senior officials about the validity of state law hardly inspires respect and confidence in the legal system.
In California, the consequences are even worse. Now that it has been demonstrated that a ballot initiative, on which millions of dollars and hours were spent and which passed into law, can be negated by a single judge, this weakens confidence in a system that Californians have held near and dear for over a century. If state officers will not defend a law, or cannot be forced to, the law should provide a mechanism for its defense.
In the end, this really is about whether we remain a government of laws and not of men. If public officials, from the president and attorney general down through state and county executives, are allowed to give themselves a pass on executing, enforcing and defending the law, then the meaning of the law itself has been greatly diminished. Surely the Pennsylvania Commonwealth Court will see the wide and deep implications of allowing a county official to disobey a law he finds unconstitutional when it begins its important hearings on September 4.
David Davenport is research fellow and also counselor to the director. His research and writing focus on international law and treaties, federalism, and values that sustain American democracy. He contributes regular commentaries to Townhall.com and Salem Radio Network, and writes columns for Forbes.com. From 1985 to 2000, he served as president of Pepperdine University, where he was also a professor of public policy and law.