Several same-sex couples recently filed lawsuits seeking to strike down Indiana’s traditional marriage definition law. A federal court granted their request temporarily but the federal appeals court stayed that order pending appeal. As Indiana attorney general, I have been asked why my office is defending the Indiana statute in court when some attorneys general 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 or 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 longstanding statute and defend it from plaintiffs’ lawyers, both in the trial court and on appeal.
We are not uncaring or insensitive toward those Hoosiers who wish to see the law changed so they can have relationships legally regulated; but as noted, I have a legal duty and obligation to defend the law as it currently exists, just as attorneys on the opposite side have a duty to represent their clients. The stay pending appeal allows the federal appeals court to fully consider the case without causing chaos or inconsistency for county clerks’ offices.
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 the attorney general of Indiana. This is an updated version of an opinion piece he originally authored in March.