Wisconsin Governor Scott Walker Refuses To Defend LGBT Rights Law

Gov. Scott Walker believes a new law that gives gay couples hospital visitation rights violates the state constitution and has asked a judge to allow the state to stop defending it.

Democrats who controlled the Legislature in 2009 changed the law so that same-sex couples could sign up for domestic partnership registries with county clerks to secure some – but not all – of the rights afforded married couples.

Wisconsin Family Action sued last year in Dane County circuit court, arguing that the registries violated a 2006 amendment to the state constitution that bans gay marriage and any arrangement that is substantially similar.

A few points.

1) Why would anyone oppose a sick or dying person being visited by their beloved? That’s twisted. That’s evil.

How are straight marriages threatened if a dying lesbian’s care is directed by her lifelong partner? Explain this to me, please.

2) I think Governor Walker should have the legal right to do the wrong thing by declining to defend this law — just as the Obama administration had the right to do the right thing by declining to defend DOMA. (If the court allows Walker to withdraw, the defense of the law will be run by civil rights group Fair Wisconsin.)

But where are those who, just three months ago, were furious with Obama for declining to defend DOMA? Back then, they said that the executive had a near-holy responsibility to defend in court even a law he considered unconstitutional.

Funny, I’ve yet to hear those folks criticize Scott Walker for his substantially similar decision.

Maggie? Newt? Michele? Bryan? You can speak up any time now.

3) When equal marriage opponents proposed Wisconsin’s anti-SSM constitutional amendment, they argued over and over that the amendment wouldn’t prevent civil unions or forbid laws protecting same-sex partners.

Now the exact same people are seeking to use their constitutional amendment to overturn Wisconsin’s domestic partnership law. That’s the law that allows same-sex partners to have hospital visitation rights and other basic protections.

“Julaine Appling and her right-wing allies said over and over the ban wasn’t about domestic partners,” said Scot Ross, One Wisconsin Now Executive Director. “Lo and behold, now they have done a complete 180 degree turn and Wisconsin has a right to know: were they lying then, or are they lying now?”

This seems to be a pattern.

This entry posted in crossposted on TADA, Same-Sex Marriage. Bookmark the permalink. 

59 Responses to Wisconsin Governor Scott Walker Refuses To Defend LGBT Rights Law

  1. 1
    Robert says:

    I thought it was OK for Obama not to defend DOMA. If you genuinely think something is unconstitutional, I don’t think you have an obligation to defend it.

    In the case of Wisconsin, it seems relatively clear although I am not an expert. The constitutional amendment banning gay marriage or arrangements along those lines is indeed wrong. But it is in place, and so the law the Democrats passed violates it. The proper approach was to undo the amendment; an incrementalist attack on it through the legislative process is politically allowable but runs the risk of what is happening now.

    In the case both of DOMA and of this law, I really don’t see the issue. Both laws are getting their day in court; both laws have defenders who will pony up to get the best representation they can.

  2. 2
    gin-and-whiskey says:

    Here is a link to a paper on the domestic partnership statute (PDF). It contains a summary of the relevant rights given to domestic partners, and (equally important) those rights not given to domestic partners.

    Paragraphs 11-13 of the linked PDF specifically addresses the issue of constitutionality w/r/t the amendment at issue. It’s worth a read.

  3. 3
    Kevin Moore says:

    I am going to go out on a limb here, but I don’t think Scott Walker and his movement are interested in fairness, compassion, dignity or intellectual honesty. They view homoz as icky, but they have to use round-about ways of saying it, and their arguments will always be a ruse pretending to be common sense when they’re just mean, vindictive people.

  4. 4
    RonF says:

    3) When equal marriage opponents proposed Wisconsin’s anti-SSM constitutional amendment, they argued over and over that the amendment wouldn’t prevent civil unions or forbid laws protecting same-sex partners.

    When gay rights activists in the ’60s and ’70s were challenged on their objectives they swore that only a crazy person would think that what they were looking for would extend to including SSM. But once one thing is put in place, others try to extend it.

  5. 5
    Ampersand says:

    Ron, do you honestly think that different gay rights activists, situated decades apart, saying contrary things, is at ALL the same as what I’m posting about here?

    Which is, just to be clear, the same activist saying opposite things about her own constitutional amendment just a couple of years apart?

  6. 6
    james says:

    I really think the relentless focus on hospital visitation is just tacky and misleading. I get you’re responsing to the newpaper, but as we know (and from gin-and-whiskey’s link) these are detailed laws which bestow huge numbers of rights. But every time, it always gets boiled down to hospital visitation. Very few people oppose a sick or dying person being visited by their beloved, but lots of people would take issue with some of the other stuff. I don’t see how going on about visitation does either gay rights activists or their opponents any favours, they both have much wider interests than that, I think it just distorts the discussion.

  7. 7
    Jake Squid says:

    I really think the relentless focus on hospital visitation is just tacky and misleading.

    How so? What right in the legislation do you find to be significantly different in a moral sense (because we’re just arguing about morals here, right?) than hospital visitation.

  8. 8
    gin-and-whiskey says:

    I don’t think it’s tacky to be upset by it, but I’ll point out that there’s absolutely no reason to tie something as flexible as visitation to a binding mutual contract (marriage or otherwise.) In other words, even if the bill gets killed the visitation can be arranged for.

  9. 9
    embergirl says:

    Question: how do you feel about someone refusing to defend something they think perfectly constitutional and also completely evil?

  10. 10
    Robert says:

    how do you feel about someone refusing to defend something they think perfectly constitutional and also completely evil?

    I think there they do have an obligation to defend it, if they are the person normally tasked with that job. The President (or the Governor) is specifically tasked with defending the Constitution, not defending the good. Defending the good can be his hobby; defending the Constitution is his job.

  11. 11
    Sebastian H says:

    I kind of come down on the opposite side of the defense thing. It is the administration’s responsibility to execute and protect the laws. So I think that Obama should defend DOMA in court (or better yet, get the damn thing repealed). But the governor should defend this law too. I don’t really see why we should have the administrative branches deciding not to defend the law in court. If we do that, there may be cases where no one has the standing to defend the law, which is ridiculous.

  12. 12
    Jeff Fecke says:

    One of the reasons I wanted Obama to defend DOMA is exactly this — when we let the executive pick and choose which laws will be defended, we make the law whatever the executive wants to say it is. And that means the law can change with an election.

    The other reason is what’s happening with Proposition 8 in the courts. Right now, it looks likely that it’s not going to move on, because nobody will defend it — and that means that Prop 8 will be unconstitutional in California. Great, right? Well…no, because Ted Olson thinks he’s got 5 votes on SCOTUS to overturn it, makjing all anti-gay marriage laws unconstitutional. If so, it’s in everyone’s best interest for it to keep climbing the ladder to the Supreme Court. Even though I believe that DOMA and Proposition 8 are unconstitutional, there are benefits to allowing them to be argued in court.

  13. 13
    Robert says:

    And that means the law can change with an election.

    I’m pretty sure that can happen already.

  14. 14
    Robert says:

    when we let the executive pick and choose which laws will be defended

    Also, pedantry but with a point: we aren’t letting the executive pick that. The executive is getting to choose which laws s/he will defend. The laws are getting defended regardless.

    I’m not an expert on the history of executive-legislative behavior, but my impression is that the executive has always had the privilege of doing this and in various times and places has done so many times before. So the issue isn’t the precedent being set, because it was set a long time ago.

  15. 15
    Sebastian H says:

    “Also, pedantry but with a point: we aren’t letting the executive pick that. The executive is getting to choose which laws s/he will defend. The laws are getting defended regardless.”

    Not always. See the arguments about standing and the California initiatives.

  16. 16
    Myca says:

    I’m glad that Obama and Walker both have the leeway to choose not to defend these laws. Their choices, to either embrace or oppose hate and discrimination, show precisely the kind of people they are, and it makes opposing or supporting them that much easier.

    —Myca

  17. 17
    Hershele Ostropoler says:

    james, 6

    Very few people oppose a sick or dying person being visited by their beloved

    About a third, I believe.

    It’s an emotive issue, to be sure, but I fail to see why that’s a bad thing; the people who are for it when the issue is couched in emotional terms but against it when it’s described more dispassionately are hypocrites. I mean, this isn’t the place for Marketing 101, but I believe the idea is to present a true if perhaps non-representative example of what people opposed to SSM or similar are opposing. The reaction of “but I didn’t mean that” isn’t proof of something sinister, it’s the point.

  18. 18
    mythago says:

    RonF @4: Let me see if I understand you. Because thirty to forty years ago, some unnamed gay-rights activists thought that marriage rights were something they’d never ever get (and/or didn’t want; being as this was the 60s and 70s), other unnamed gay-rights activists – some of whom weren’t even alive then – who want marriage rights are fucking liars.

    You’re like the Reed Richards of desperately reaching for an analogy.

  19. 19
    Ampersand says:

    As far as the prop 8 case goes, I think that marriage equality folks should use nearly every legal, non-violent method the system makes available, including getting a case thrown out for lack of standing.

    I do not in any way criticize SSM advocates for using the legal options available to them. They’re playing by the rules.

    Nonetheless, I wish the rules were different; laws should be defended by someone. I’m comfortable with what Obama chose, and what Walker chose, in part because both the laws will be as ably defended — and very plausibly better defended — because the executive can bow out when s/he’s politically constrained from offering a full defense of a law. So if anything, giving an executive an escape hatch like this means that the adversarial court system will work better than it otherwise would.

    Jeff wrote:

    One of the reasons I wanted Obama to defend DOMA is exactly this — when we let the executive pick and choose which laws will be defended, we make the law whatever the executive wants to say it is.

    That’s not true. Obama is letting the Congress defend DOMA, rather than the executive; that falls far short of Obama being able to decide DOMA is not the law.

    The other reason is what’s happening with Proposition 8 in the courts. Right now, it looks likely that it’s not going to move on, because nobody will defend it — and that means that Prop 8 will be unconstitutional in California. Great, right? Well…no, because Ted Olson thinks he’s got 5 votes on SCOTUS to overturn it, makjing all anti-gay marriage laws unconstitutional. If so, it’s in everyone’s best interest for it to keep climbing the ladder to the Supreme Court.

    The phrase “if so” is the problem, isn’t it?

    It’s also possible — I’d argue probable — that there are not five votes for gay marriage on the current Supreme Court. If that’s so, then we should be very happy if Olson’s case never reaches the Supreme Court, because a bad ruling at the Court level now could mean that the cause will be set back many years, everywhere in the country.

    Many gay rights groups didn’t want Olsen to pursue his case for exactly that reason. Olsen is a brilliant, accomplished lawyer, but I’m not convinced he really can convince the most conservative Court in decades to support SSM. If Olsen is wrong, he washes his hands and moves on to his next case, but same-sex couples could be stuck with the results for many years.

  20. 20
    Sebastian H says:

    I don’t know if you’ll think this is a threadjack, so you can ignore it if you think it is, but I think the Prop 8 case is just illustrative of the problem that goes far beyond the same sex marriage case. If the reasoning on the Prop 8 case is correct, initiatives that the governor doesn’t like will rarely have someone with standing to sue for enforcement or defend them in court. This is one of the cases I was talking about where precedent begins to violate obvious common sense. It can’t be right for initiatives to have the state government as they only people who can defend them in court. The whole point of initiatives is that they allow laws to be passed over the heads of the state government.

    “As far as the prop 8 case goes, I think that marriage equality folks should use nearly every legal, non-violent method the system makes available, including getting a case thrown out for lack of standing.

    I do not in any way criticize SSM advocates for using the legal options available to them. They’re playing by the rules.”

    Here’s my problem with this approach and it really attacks the hyper-legalism of the way our country has been going. Laws exist as a part of societal norms, but not as the entirety of societal norms. The precedent and history of standing, presupposes the norm of the administration defending in court laws that it disagrees with–especially when standing rules would otherwise bar anyone else from defending them. They aren’t easily separable parts. If you want a new norm, where administrations don’t really have to bother with that, you can’t ALSO fall back on standing arguments. That’s the problem I have with SSM lawyers and lots of hyper-legal people on the right and the left. They are breaking down the whole system for short term political gain.

    And yes, I’m perfectly aware that LOTS of people on the right do it. The Terri Schiavo case is an excellent example.

    I just have strong concerns about breaking down the system haphazardly. What is the point of winning ‘rights’ if we firebomb the system that protects rights in order to do it?

  21. 21
    james says:

    How so? What right in the legislation do you find to be significantly different in a moral sense (because we’re just arguing about morals here, right?) than hospital visitation.

    I wouldn’t argue morals. But the law gives about 50 rights, so kicking off by talking about it as the ‘new law that gives gay couples hospital visitation rights’, while technically accurate doesn’t really give people a full picture of what’s being debated. That’s the misleading.

    It’s an emotive issue, to be sure, but I fail to see why that’s a bad thing; the people who are for it when the issue is couched in emotional terms but against it when it’s described more dispassionately are hypocrites.

    Emotive cuts both ways though, you can find a small but emotive aspect of the law on either side. It also prevents partners being compelled to testify against each other. So let’s rewrite the article:

    ‘Gov. Scott Walker believes a new law that [allows child molesters to keep eyewitness testimony against them from being presented to a court] violates the state constitution and has asked a judge to allow the state to stop defending it.’

    I’m not sure trying to get people’s emotions running high is the best way to go about things.

  22. 22
    Elusis says:

    If the reasoning on the Prop 8 case is correct, initiatives that the governor doesn’t like

    YM “initiatives that the governor and his legal staff have, after considerable research, concluded are likely in violation of the state constitution and may be a waste of extremely limited state funds to defend, particularly since this particular state’s initiative process is so incredibly screwed up that almost any crazy thing with a little funding behind it can get on a ballot, no matter how legally dubious.”

    HTH.

  23. 23
    Jake Squid says:

    … so kicking off by talking about it as the ‘new law that gives gay couples hospital visitation rights’, while technically accurate doesn’t really give people a full picture of what’s being debated. That’s the misleading.

    Are you saying that in order to talk about legislation that we need to characterize it by enumerating every single thing in it? What would you use as a lead or description to begin a discussion of this?

  24. 24
    Robert says:

    “A law that gives committed gay couples some of the same rights as heterosexual married couples, such as [two or three things]“.

    I agree that you can’t enumerate everything, but I also see the point that describing a law by its most fluffy/most horrifying feature, and leaving the impression that this is the only thing that law does, is misleading.

    My Facebook feed is full of alarmed posts from gay and gay-friendly friends horrified that “Scott Walker is trying to ban gay people from visiting their partners in the hospital!”

    In fairness, that could be the downstream consequence of his decision, but as a general rule I don’t like it when my side characterizes actions by, say, Obama in terms of their possible eventual downstream consequences as though that was his direct action. “Obama muddies waters on US position vis a vis Israel’s borders” is a fair statement, “Obama says shrink Israel to six miles wide and bend country over barrel for invaders” is not.

    I don’t like it any better when left-wingers do it.

  25. 25
    Jake Squid says:

    Fair enough. I must admit that I find banning a law that gives committed gay couples some of the same rights as heterosexual married couples to be as awful and with as much emotional impact as a banning a law that allows gay people to visit their partners in the hospital.

    Maybe that’s just me, but I don’t think so.

  26. 26
    Ampersand says:

    I agree that you can’t enumerate everything, but I also see the point that describing a law by its most fluffy/most horrifying feature, and leaving the impression that this is the only thing that law does, is misleading.

    Point well taken, Robert.

  27. 27
    Robert says:

    No reason to be all civil about it.

  28. 29
    Robert says:

    Now that’s more like it.

  29. 30
    Hershele Ostropoler says:

    james, 21:

    Emotive cuts both ways though, you can find a small but emotive aspect of the law on either side.

    I can’t really see an emotive argument against equal marriage that has the same level of factual basis (“it’ll make marriage less special!” for example, is emotive but without even a claimed factual basis).

    I don’t understand how the pedophilia example you offered is a consequence of equal marriage (I’m assuming you understand that a person can’t marry a child, legally force anyone to marry them, or legally prevent their spouse from testifying against them if the spouse wants to), but even if I did I think addressing it specifically would derail the thread; if you care to clarify it I would be willing to discuss it here or in the Annex if Ampersand doesn’t object.

    That it would be harder for Wisconsin to punish gay meth dealers — as it now is, presumably, for Iowa et al., except in Federal courts — is a price I’d be willing to pay, though.

  30. 31
    Phil says:

    That’s not true. Obama is letting the Congress defend DOMA, rather than the executive; that falls far short of Obama being able to decide DOMA is not the law.

    And Congress could choose not to defend DOMA. I wouldn’t have a problem with that; Congress has the right to overturn DOMA tomorrow if it wanted.

    It can’t be right for initiatives to have the state government as they only people who can defend them in court. The whole point of initiatives is that they allow laws to be passed over the heads of the state government.

    Sebastian H, I think you have a point, and it’s one of the big ways that the Prop 8 case is different from the situation in Wisconsin, or Obama’s choice not to defend DOMA. The Congress can represent a law passed by Congress, but who can represent a law passed by “the people?”

    I have a lot of problems with the whole ballot initiative system in California, generally. I think there may be important situations where ballot initiatives are useful, but they ought to be used much, much more sparingly than they are in this state. (Last November, I had to vote on whether the law should exclude seismic upgrades on unreinforced masonry buildings from reassessment. Seriously? Why do I have elected representatives if I have to personally make those decisions?)

    The people of the state of California can’t have a giant town hall meeting to decide who will represent Prop 8. Instead, they elect an attorney general to do things like that. It’s an imperfect system.

  31. 32
    Sebastian H says:

    I’ll be the first to admit that initiative system in CA is VERY far from ideal. It really ought to be for policy level decisions, not minutiae. But that said, the whole legislative process in CA is very far from ideal, I’m not sure why we should privilege the statehouse laws.

    “Instead, they elect an attorney general to do things like that. ”

    Yes they do. And she should darn well do her job and represent Prop 8. Her duty is to defend and enforce the laws. And she certainly shouldn’t be going along arguing that no one else is allowed to have standing if she doesn’t want to do it.

    Her argument is found here

    California Attorney General Kamala Harris (D), submitted an amicus brief on Monday to the California Supreme Court arguing that “California law affords an initiative’s proponents no right to defend the validity of a successful initiative measure based only on their role in launching an initiative process.” The Attorney General opined that only public officials exercising the power of government have the authority to represent the State when State laws are challenged and further that to allow such intervention, “would rob the electors of power by taking the executive power from elected officials and placing it instead in the hands of a few highly motivated but politically unaccountable individuals.”

    That is all very nice, but the whole freaking idea behind initiatives is that sometimes the State government for various reasons gets stuck and the electorate gets to go over their heads. It is crazy to suggest that *the only people* permitted to defend such laws in court are the very people who the electorate circumvented in passing the law in the first place. That would be like saying the only people allowed to challenge the validity of a warrant are the cops. Of course that isn’t right, the whole point of a warrant is as a check on the power of the cops.

  32. 33
    Sebastian H says:

    Amp I want to recall what you said here “I do not in any way criticize SSM advocates for using the legal options available to them. They’re playing by the rules.”

    Does that extend to the Attorney general of California arguing that if she doesn’t want to defend it, no one else should have standing? Is that really what you see as playing by the rules?

  33. 34
    Charles S says:

    IANAL, but… the Federal Supreme Court has established the rules for who has standing to appeal a Federal Court decision, and the Supreme Court has established over many decades that only people who will be particularly harmed by the decision have standing. The California Supreme Court is currently deciding whether initiative sponsors have a legal right under state law to appeal. How is it not playing by the rules for the AG of California to file an amicus brief arguing that they do not? Is it your contention that the AG is legally or morally required to argue that they do have that legal right? If so, why? If not, how is this not playing by the rules?

    It has been established that the initiative petitioners do not have standing as they will not be particularly harmed by the failure of measure 8. It has already been established that other states with initiative systems do not grant initiative sponsors a sufficient legal right to defend initiatives that the Federal Courts must acknowledge that right. The question is whether California’s initiative system grants sufficiently stronger rights to initiative petitioners than other states’ systems do. That is a question I am certainly entirely unqualified to answer, but it doesn’t seem to me to be a question to which the answer is trivially ‘Yes,” and for which any attempt to argue that the answer is “No” is somehow a failure to play by the rules.

    That you think that initiative petitioners ought to have the right to appeal is not the same thing as that right being established within California law. That I think that standing should be interpreted much more broadly (and should include initiative petitioners) does not make that the law of the land. To challenge someone’s standing because they lack standing under Federal SC established precedent is very much playing by the rules. For the AG to file an amicus brief arguing for a non-expansive understanding of the rights granted to initiative petitioners also seems to be well within the rules.

    If the people of California are dissatisfied with the eventual state SC ruling on whether or not initiative petitioners have a legal right to appeal, they have a fairly simple remedy. They can pass an initiative granting initiative petitioners the right to appeal (or stripping that right from them).

  34. 35
    gin-and-whiskey says:

    Is it your contention that the AG is legally or morally required to argue that they do have that legal right? If so, why?

    By taking the office the executive branch has sworn to uphold the CA constitution. The initiative process is part of that constitution. The executive may not morally act to circumvent it.

    The executive does have more than one ethical option. They can actively defend the initiative, on their own (I think this is ideal). Or they can refrain from defending the initiative, and pass that defense to someone else who is interested and qualified (less ideal, but still within the bounds of propriety.) But they may not ethically fail to defend it and argue that it cannot be defended by another, so long as the initiative process is part of the constitution and so long as they’re still in office.

  35. 36
    mythago says:

    In CA, the executive DID defend Prop 8 against a legal challenge. What they are not doing is appealing a court decision holding that Prop 8 was unconstitutional. Are you really arguing that it is unethical for the executive to accept the effects of a court ruling? That it is ethical for state-employed attorneys to raise arguments they believe to be false?

    What you all are arguing is that the ‘duty to defend’ requires the AG to file appeals all the way up to SCOTUS no matter what in every case. That’s ridiculous.

    Regarding “standing”: this is neither a new or liberal concept in the law. It’s the idea that if you want to get involved in a lawsuit, it should involve you in some way. Otherwise, let’s say that you and your bank are very happy with your car loan, but I think it’s oppressive – would it be OK for me to file a lawsuit to try and get the loan annulled? I mean, who asked me?

    I also find the standing arguments somewhat amusing because a lot of the law on standing arose out of public-interest litigation, where the courts held (correctly) that it’s not enough to be a Concerned Group, you must have a person alleging actual harm. The problem for Prop 8 proponents, of course, is that it’s a little difficult to allege actual harm because a couple of women got married.

  36. 37
    Sebastian H says:

    “Regarding “standing”: this is neither a new or liberal concept in the law. ”

    And the people who passed a law don’t have standing? Don’t tell Congress.

    So far as I can tell much of the standing issue comes from treating defending a law and attacking the law as exactly the same position. I don’t see that as obvious at all.

    “If the people of California are dissatisfied with the eventual state SC ruling on whether or not initiative petitioners have a legal right to appeal, they have a fairly simple remedy. They can pass an initiative granting initiative petitioners the right to appeal (or stripping that right from them).”

    Great remedy. How will that work if the CA attorney general chooses not to enforce it or defend it from challenge?

  37. 38
    Ampersand says:

    Sebastian, I’d really like to see you address this, from Mythago’s comment, please:

    What you all are arguing is that the ‘duty to defend’ requires the AG to file appeals all the way up to SCOTUS no matter what in every case. That’s ridiculous.

    Because it seems to me that it’s a fairly strong argument. Are you really saying that the duty to defend a law in court extends to a duty to appeal after fully defending the case and losing in court?

    How will that work if the CA attorney general chooses not to enforce it or defend it from challenge?

    There’s an enormous difference between not defending a law from challenge (or, in this case, not appealing a law after losing in court), and not enforcing a law. I don’t think conflating the two is fair or reasonable.

    Same-sex couples cannot currently marry in CA. DOMA is still being enforced. That not defending a law, or not appealing a law, is in practice a separate act from not enforcing the law, is just empirical fact.

    [Edited to desnark]

  38. 39
    gin-and-whiskey says:

    mythago says:
    May 27, 2011 at 8:05 am

    In CA, the executive DID defend Prop 8 against a legal challenge. What they are not doing is appealing a court decision holding that Prop 8 was unconstitutional. Are you really arguing that it is unethical for the executive to accept the effects of a court ruling?

    Following a bad outcome of a lower court case, the executive may ethically remain neutral. This neutrality includes declining to file an appeal, so long as an effort is made defer to the interests of others (option two.) I still believe it is preferable for them to take the case in this instance, but I’ve conceded they don’t have to. Similarly, following the bad outcome of a lower court case, you or I may elect not to take the client on for an appeal.

    However, following a bad outcome, the executive should not take a position which is materially adverse to the parties it once defended. They can’t lose a case and then file a brief opposing their old position. Neither can they ethically file a brief which would reduce the ability of stakeholders to defend the now-abandoned argument.

    I don’t suggest that the executive must proactively seek to support stakeholder interests in all situations, because there are other issues which could easily come into play vis-a-vis the broader interests of the state and its populace. But once the executive has taken on the role of defense I think it is inappropriate to flip sides.

    That it is ethical for state-employed attorneys to raise arguments they believe to be false?

    Woo cares what they believe? I’ve lost cases where I believed I would win and I’ve won cases where I believed I would lose. All that this does is to re-emphasize the reality that it isn’t MY judgment, but the COURT’S judgment, which matters.

    You and I both know that the standard for frivolity is damn low. Even if you believe an argument to be a likely loser, you can raise it in court. That’s what we do.

  39. 40
    Mythago says:

    Gin-and-whiskey: there is, as you and I know, a difference between a desperate argument and a false one, which is why I used that word. Perhaps I’ve just seen one too many defense briefs that claim a case said X when it really says not-X, or that conveniently ignore controlling authority that doesn’t fit the narrative.

    Sebastian, a good explanation of standing in US law is here: http://topics.law.cornell.edu/wex/standing

  40. 41
    Phil says:

    It is crazy to suggest that *the only people* permitted to defend such laws in court are the very people who the electorate circumvented in passing the law in the first place.

    Sebastian, is it fair to say that the electorate circumvented the attorney general? She isn’t really part of the lawmaking process that ballot initiatives circumvent, since she is neither involved in writing and passing legislation nor in signing it.

    I think there is a case to be made that the attorney general is duty-bound to defend any state law in court, including ballot initiatives, as a representative of the people. But, unlike Congress, there is no official way for the people to tell their attorney general not to defend a law if they decide it ought not be defended, for some reason. Attorneys that represent actual clients are not automatons that can never be stopped once set in motion. Congress could instruct its lawyers not to appeal, if they so chose.

    The closest thing we have in the state of California for the people to tell their attorney general not to appeal a case is the general election. An argument could be made that, in some instances, an attorney general has no way to know the intentions of the citizens of the state.

    But in the case of Kamala Harris, she made it clear during her campaign that she would not appeal the Prop 8 case. The voters of the state of California voted for her. That is the best assessment we have of whether the people want the case to be appealed. In this particular instance, it could be argued that if Harris appealed this case she would be violating the will of the people.

    I’ve lost cases where I believed I would win and I’ve won cases where I believed I would lose.

    gin-and-whiskey, the question was not about whether attorneys general believed they would win or lose, it was about whether they believed the arguments they were making are false. A more precise way to phrase it might be: do you believe that attorneys should make claims that they believe to be false? (Or that they, under some circumstances, are required to do that, etc.)

    In a debate of fact, making a claim that you believe to be false is lying. Not all claims that are made in court are claims of fact, however, which is why I think the statement is best phrased the way mythago put it: “that you believe to be false.”

    For example, if a lawyer says, “There is nothing that humans can do that will have an impact on global warming,” that’s a claim. At the moment, we can’t prove or disprove that claim, but it is based on the assessment of a complicated situation. If you are a lawyer and you make that claim in court, it is reasonable for me to conclude that you believe it. If you are an elected official, such as an attorney general, and you make that claim in court, it is reasonable for me as a voter to conclude that you believe it.

    If the Attorney General of the United States says, “The best way to promote responsible procreation is to ban same-sex couples from marrying,” then he or she had better fucking believe it. If you don’t believe what you’re saying, then don’t say it. You are a human being first, and a lawyer second.

    This is not merely academic. Court cases are not college debate tournaments. Lawyers have an ethical obligation not to lie, and I would also contend that they have an ethical obligation not to say things that are false. If the falsity of a statement cannot be determined at this time, you have an ethical obligation not to say things that you believe are false.

    This is not to say that an attorney general cannot ever represent a law that they don’t like. An attorney general could argue that a law was legally passed, for example, even if they think it’s a stupid or unnecessary law.

    And the people who passed a law don’t have standing? Don’t tell Congress.

    But we don’t know who passed the law, Sebastian. It was done anonymously, by secret ballot. If you want to get really technical, the attorney general is also a citizen of the state of California with the right to vote, and as such, she is a member of the group she is representing.

    This points to another flaw in the ballot initiative system. In the state of California, the state constitution can be amended entirely in secret. The identities of the people who signed the petition to get the initiative on the ballot are anonymous. The identities of the people who voted for and against the amendment are anonymous. There is no requirement for debate, nor any kind of check to see whether people voting on a law actually understand the language of the law. (And that matter is not academic–I would bet any sum of money you care to wager that at least 4.5% of California voters have no idea whether trans women are legally considered to be women in the state of California. This ignorance did not preclude them from creating the slim majority that stripped a fundamental right from trans women.)

    As noted, it’s an imperfect system. But if the attorney general has the right to decide not to appeal a case, would the system become more perfect if they were somehow compelled to appeal every case?

  41. 42
    Phil says:

    In CA, the executive DID defend Prop 8 against a legal challenge.

    Mythago, I don’t believe that’s true. In California, both the governor and the attorney general declined to represent Prop 8 in court, so the court allowed some proponents of the measure to represent it, instead.

    But once the executive has taken on the role of defense I think it is inappropriate to flip sides.

    g-n-w, would it be fair to view that as an argument that the executive should not be forced to represent a law that it views as unconstitutional in the first place? Because you’re saying that once they take the role of defense, they can’t make claims that would harm that defense–even if they agree with the court’s decision to overturn a law.

  42. 43
    gin-and-whiskey says:

    For example, if a lawyer says, “There is nothing that humans can do that will have an impact on global warming,” that’s a claim. At the moment, we can’t prove or disprove that claim, but it is based on the assessment of a complicated situation. If you are a lawyer and you make that claim in court, it is reasonable for me to conclude that you believe it. If you are an elected official, such as an attorney general, and you make that claim in court, it is reasonable for me as a voter to conclude that you believe it.

    No, actually, it’s not. This may be the source of your confusion. (it may be reasonable, i guess. law doesn’t always follow reason. but whether or not it’s reasonable, it’s not correct.)

    An attorney’s argument is not factual and is not testimony. We present; we argue; we do not testify.

    A simpler example may be criminal defense (which I actually don’t do, but it makes a good example anyway.) I cannot defend a client if I know that he is lying: I can’t put him on the stand to say he’s never held or possessed a weapon when he walked in wearing a knife sheath, and left a bloody knife in my desk drawer.

    However, even if there’s a bloody knife in my desk drawer, I am allowed–expected, in fact–to argue that the client is innocent. I can–must–do so even if I believe that he used the knife to kill someone.

  43. 44
    Phil says:

    However, even if there’s a bloody knife in my desk drawer, I am allowed–expected, in fact–to argue that the client is innocent.

    Is that true in all cases, gin-n-whiskey? If you know for a fact that your client has killed someone, are you expected to lie in court and argue–specifically, and using this language– that he or she is innocent? Is that even legal?

    Are you legally permitted to hide from the court the fact that you have evidence, such as a bloody knife, in your desk drawer?

    An attorney’s argument is not factual and is not testimony.

    I think you are using a jargonized definition of “factual.” A fact is something that can be proven or disproven. If you make the claim, “My client did not stab your client,” that is a statement of fact. It doesn’t matter who is saying it, by definition, it is a statement of fact. Either it happened, or it didn’t.

    Now, I understand the importance of every accused person getting a vigorous defense. And I think it’s possible that attorneys representing clients in criminal cases may need exemptions from what I view as the moral culpability that all human beings face for the statements they make.

    But my understanding of a criminal trial is that an attorney’s goal is to argue that there is not enough evidence to convict their client beyond a reasonable doubt. In that way, the system protects all of us, even if it means that some robbers and murderers get off the hook. But it is possible to argue that the evidence is insufficient to convict your client even if you believe your client to be guilty. You can present an alternate theory about what might have happened on the night of a crime even if you don’t believe it is what actually happened.

    But if you know for a fact that your alternate theory could not possibly have happened, that is unethical, whether you are a lawyer or not.

    Isn’t that one reason lawyers don’t take the stand or provide testimony? No one asks them, “Do you believe your client to be guilty?”

    Edited to add this:
    “If you are an elected official, such as an attorney general, and you make that claim in court, it is reasonable for me as a voter to conclude that you believe it.”

    Without regard to the criminal case discussion, above, I believe this is a separate claim.

    Are you really saying that it is unreasonable for me, as a voter, to conclude that an elected official believes the claims that they make in court?

  44. 45
    Sebastian H says:

    “But, unlike Congress, there is no official way for the people to tell their attorney general not to defend a law if they decide it ought not be defended, for some reason. Attorneys that represent actual clients are not automatons that can never be stopped once set in motion. Congress could instruct its lawyers not to appeal, if they so chose.”

    If this was a law that had been passed a century ago, this would be a colorable argument. It isn’t. It was passed two years ago. And if people *really* didn’t want it to be defended they could pass a repeal. Which of course won’t be happening this election. So we don’t really believe that right?

    “What you all are arguing is that the ‘duty to defend’ requires the AG to file appeals all the way up to SCOTUS no matter what in every case. That’s ridiculous.”

    No I’m not arguing that for all laws. But there is a strong case for it for very recently passed initiatives.

    “Because it seems to me that it’s a fairly strong argument. Are you really saying that the duty to defend a law in court extends to a duty to appeal after fully defending the case and losing in court?”

    This isn’t an accurate portrayal of what happened at all. Then Attorney General Jerry Brown was actively and publicly working against Prop 8 through the entire time it was in court. It is completely wrong to say that the California administration *fully defended* the case. They actively opposed it from the beginning. And NOW part of their active opposition includes denying ANYONE from defending it. I hate Prop 8. It was stupid and bigoted and disgusting and wrong. But it validly passed like lots of laws I do like. And it passed through a system which was affirmatively created to circumvent legislature and to force the hand of the administration. Allowing the administration to just say “Hmmm, don’t care to defend it against challenge AND no one else is permitted to either” is clearly attacking the whole initiative system (without being willing to admit that they are attacking the initiative system). If you don’t like the initiative system, amend the California Constitution. It isn’t even very hard to do!

    “As noted, it’s an imperfect system. But if the attorney general has the right to decide not to appeal a case, would the system become more perfect if they were somehow compelled to appeal every case?”

    For DEFENDING a law–especially an initiative, if the attorney general declines to appeal, they shouldn’t also invoke standing rules to prevent an appeal.

    The approximate early history of the suit is–Prop 8 attacked in court, Attorney General makes it clear he won’t want to defend it (which in any normal world would be the end of his job) and NO state officer defended it in court. This would normally be an enormous problem, but to sidestep the almost certainly illegal decision to avoid defending it, Brown let other parties proceed with the defense.

    Note this is NOTHING like what Amp and Mythago have suggested, and I’d like to see if this changes their analysis.

    Now, the attorney general is attacking the standing of those parties. This is detrimental to the rule of law on multiple bases.

    First, this sidesteps the Attorney General’s earlier responsibility to defend the law. They didn’t attack standing earlier, because it would have compromised their position that they didn’t have to defend (stating that it was still being defended).

    Second, standing isn’t a momentary problem, if the defenders don’t have it now, they NEVER did, and the case was not properly tried and litigated in the first place.

    Which should lead to third, if the attorney general is going to take the position that the defense NEVER had standing, it needs to petition to throw the ruling out entirely. But of course they aren’t going to do that, because the whole point of this exercise is as an end run around the initiative process.

    Again. I hate Prop 8. I don’t even love the initiative system. But this legal gamesmanship is horrific for the rule of law. Attorney generals should do their job. They shouldn’t actively flout the law they are supposed to defend, and they shouldn’t actively keep people from defending the law when the attorney general avoids her duty.

    Mythago, I’m embarrassingly intimate with the laws of standing. When I say that defending and attacking laws aren’t mirror images of each other I’m saying that nearly all of the standing law is about who can attack a case. Case and controversy law is grounded on the idea that it isn’t wise to have one-sided cases. Standing is generally used to ensure that the plaintiff’s side is represented by someone with an actual stake in the case. Defending a validly passed law, when the government refuses to *but also does not repeal it*, is not a mirror image situation, and I don’t see it as clear that we should try to shoehorn one situation into the other. (Nor am I even certain that traditional standing rules should stop the defense anyway. I’d argue that there is in fact a case in controversy.)

    But I’m especially interested in what you want to say now that you know that CA did NOT defend Prop 8 in the lower court. It sounded like the idea they did was important to you. How does that play out now that you know they didn’t?

  45. 46
    Phil says:

    If this was a law that had been passed a century ago, this would be a colorable argument. It isn’t. It was passed two years ago. And if people *really* didn’t want it to be defended they could pass a repeal. Which of course won’t be happening this election. So we don’t really believe that right?

    A real client can change their mind at any time; they do not need for a century to pass. And Prop 8 turned out to be the most expensive ballot initiative campaign in history, so there are good reasons not to try pass a repeal.

    If we “don’t really believe this,” that requires us to believe that Kamala Harris said, publicly, that she would not defend Proposition 8 in court, and the citizens of California decided, even though we want Proposition 8 defended in Court, to elect her anyway. Do you believe that to be the case?

    Second, standing isn’t a momentary problem, if the defenders don’t have it now, they NEVER did, and the case was not properly tried and litigated in the first place.

    This is a valid point. The AG creates an unfair situation by saying, first, I will not defend, and second, no one else has the right to do it. That is different from what the Obama administration did with DOMA, which is: I will not defend this law, but the organization that created it may do so.

    That this legal maneuver is being pulled on a repugnant law now is incidental. It is possible, for example, that the people of California could pass a _good_ law: say, eliminating gender discrimination in housing, and an attorney general could decline to defend it and also argue that no one else has that right.

    However, I think this just points out one of the flaws in the ballot initiative system. I don’t the solution is to force the attorney general to lie in court. I think the solution is to reform the ballot initiative system.

  46. 47
    Mythago says:

    You know what, you are completely correct. I was thinking of In Re: Marriage Cases (the state case).

    Do I think the AG should have defended it at the trial level? Sure – unless it was equally or more well-defended by an intervenor, and in this case, I don’t see how a “sabotaging” AG would have been preferable. Don’t you think Prop 8 got a better shake from well-funded advocacy groups than it would have from Brown?

    But all that aside, how on earth does a Prop 8 group have standing? Where is their injury? It looks very much like a Sierra Club situation to me.

  47. 48
    Ampersand says:

    The approximate early history of the suit is–Prop 8 attacked in court, Attorney General makes it clear he won’t want to defend it (which in any normal world would be the end of his job) and NO state officer defended it in court. This would normally be an enormous problem, but to sidestep the almost certainly illegal decision to avoid defending it, Brown let other parties proceed with the defense.

    Note this is NOTHING like what Amp and Mythago have suggested, and I’d like to see if this changes their analysis.

    It changes mine. What I’d like to see, in that case, is for a rule that the law needs to be defended. I don’t have any problem with the parties that wrote and advocated for Prop 8 taking charge of the defense (in fact, I see advantages to that), but if that’s what happens than they should retain standing for the life of the case.

    Thanks for the reminder of the history behind this case.

  48. 49
    mythago says:

    I don’t have any problem with the parties that wrote and advocated for Prop 8 taking charge of the defense (in fact, I see advantages to that), but if that’s what happens than they should retain standing for the life of the case.

    You know, I’m beginning to think that my belief “the AG should defend at trial” is incorrect. Not because of Prop 8, but because the idea of throwing out the concept of standing is appalling. “You don’t have a personal stake in this case? Oh well, who cares, appeal away!”

    This is the real issue with standing. The pro-Prop 8 people can’t articulate any harm they will suffer if Prop 8 is overturned. There’s no member of NOM who is saying “I, personally, will suffer X harm if Prop 8 is not restored.”

  49. 50
    Ampersand says:

    Is the appearance of propriety a concern?

    If the AG hadn’t passed the case onto the Prop 8 people, and if the AG had instead put on the exact same defense that the Prop 8 people did, then everyone on the right would now be saying that he’d deliberately put on a bad defense to throw the case. Frankly, I might believe it myself (only calling two defense experts?).

    I can see the harm of getting rid of standing (although I wonder if there isn’t some way to allow the AG to pass on the defense of a particular law to an organization without throwing out standing altogether). But I also think there’s a harm in the appearance of laws not having a legitimate or sincere defense.

  50. 51
    mythago says:

    Which is why I think it was a good thing that the AG allowed intervenors to argue the case. But allowing an interested party to intervene at trial is not the same thing as giving them standing. The former is more like hiring outside counsel. The latter is throwing the whole concept of standing out the window.

    Because the reason the Prop 8 groups don’t have standing is not, “they aren’t the AG”. It’s that nobody is harmed if Prop 8 is overturned. They cannot have somebody come forward and say “My marriage was destroyed by Prop 8.” And granting them standing is buying into the pretense that, in fact, allowing same-sex couples to marry somehow destroys marriage.

  51. 52
    Myca says:

    If a case in which nobody has standing doesn’t get defended, who is harmed?

    Isn’t the answer sort of tautologically ‘nobody’?

    I mean, I may be wrong, but I’d need convincing.

    —Myca

  52. 53
    Robert says:

    You guys do realize that crap like this is what’s going to end up making me King, right?

  53. 54
    Mythago says:

    Queen, Robert, queen.

  54. 55
    Elusis says:

    It is possible, for example, that the people of California could pass a _good_ law: say, eliminating gender discrimination in housing, and an attorney general could decline to defend it and also argue that no one else has that right.

    But people would have the right – people with standing. People who could say “I am harmed by gender discrimination in housing that will take place if this law is not allowed to go into effect, which for some reason a court has incorrectly decided to decree, and therefore I have the standing to appeal this decision.”

    As noted just above, the legal problem the Prop 8 forces have created for themselves is that they have attempted to legislate away something which in no way harms them by its existence, and which therefore they may well have no standing to appeal when it is thrown out in court.

    I could decide “I want a law in California that says everyone must wear orange on Fridays,” and who knows, maybe with enough money and moxie and political consultants I could get it passed (let’s pretend I could, anyway) but if it did pass, and were immediately thrown out on the grounds of violating state constitutional principles about freedom of speech (as it should), I would have a hell of a time making any kind of legal claim that I am being harmed by not seeing people wearing orange on Fridays and therefore have legal standing to appeal the decision.

    Other than the vague claim that I wanted it to happen and I paid for the initiative and convinced 50.1% of people to vote for it and now I want things to be the way I want them.

    Which we also call “a tantrum.”

  55. 56
    Myca says:

    I would have a hell of a time making any kind of legal claim that I am being harmed by not seeing people wearing orange on Fridays and therefore have legal standing to appeal the decision.

    Right.

    I mean, look, guys, maybe there’s a really good example of a great law in which nobody would have standing to defend it, but I can’t really think of one.

    —Myca

  56. 57
    Sebastian H says:

    “I mean, look, guys, maybe there’s a really good example of a great law in which nobody would have standing to defend it, but I can’t really think of one.”

    Probably any practical law regarding global warming. Standing requires concrete injury, almost anyone interested in suing isn’t likely to have it.

  57. 58
    Phil says:

    As noted just above, the legal problem the Prop 8 forces have created for themselves is that they have attempted to legislate away something which in no way harms them by its existence, and which therefore they may well have no standing to appeal when it is thrown out in court.

    Yeah, reading this, I’ve come around to this viewpoint–that the Prop 8 standing issue is not indicative of a systemic problem, but is, in fact, unique. The nature of the law that was passed is what prevents its proponents from having standing.

    As such, a decision about standing is also a decision about the merits of the case, isn’t it? The legal standard was: we need to establish that there was a reason besides animus to pass this law. The defense argued, well, yes, we’ll be hurt if this law doesn’t remain on the books. The court said, no, you haven’t established that anyone will be hurt if this law is thrown out. And now, given the nature of this particular case, no one can prove that they’ll be hurt such that they have standing to appeal the decision.

    I mean, look, guys, maybe there’s a really good example of a great law in which nobody would have standing to defend it, but I can’t really think of one.

    I can think of examples of bad laws where no one seems to have standing to litigate. Courts have repeatedly thrown out cases where people (okay, mostly Michael Newdow) has tried to attack things like “Under God” in the pledge of allegiance at public schools, or “In God We Trust” on our currency, or the use of the phrase “So help me God” when swearing in officials.

    In the case of “Under God” and “So help me God,” courts decided Newdow didn’t have standing.

    I think a strong case could be made that these phrases should not be used in an official state-sanctioned capacity, even though the harms that an individual citizen may suffer are not easily measured.

  58. 59
    mythago says:

    Not all of Newdow’s cases have been thrown out on standing grounds.