Oregon’s attorney general announced this week her office will not defend the state’s marriage amendment in court.
Like Arkansas, Oregon’s voters approved a state marriage amendment in 2004 defining marriage as the union of one man and one woman. That amendment has come under attack by gay activists and is now the subject of a lawsuit. Attorney General Ellen Rosenblum wrote yesterday,
“State Defendants will not defend the Oregon ban on same-sex marriage in this litigation. Rather, they will take the position in their summary judgment briefing that the ban cannot withstand a federal constitutional challenge under any standard of review. In the meantime, as the State Defendants are legally obligated to enforce the Oregon Constitution’s ban on same-sex marriage, they will continue to do so unless and until this Court grants the relief sought by the plaintiffs.”
Rosenblum is the latest in a string of state officials around the country who have shirked their responsibility to defend marriage laws voters in their states have passed.
If you read the quote carefully, you see Rosenblum notes that her office will continue to enforce the ban on same-sex marriage, because they are obligated to do so as long as it is in the state’s constitution. The irony is defending state laws in court is a fundamental obligation of every attorney general in America. Rosenblum admits her office is required to enforce the law; she should also acknowledge her office is required to defend the law. She can’t cherry-pick which obligations she follows and which she ignores.
No attorney general has the power to declare a law unconstitutional. That power rests solely with the Judicial Branch. We have three separate, co-equal branches of government specifically to prevent this kind of lawlessness, where state officials unilaterally decide a democratically-enacted law is worthless.
A Democratic attorney general doesn’t get to decide a state ban on same-sex marriage is unconstitutional any more than a Republican attorney general gets to decide a new tax or minimum-wage increase is unconstitutional. Their job is to defend the law in court. Some liberals are hailing Rosenblum’s decision right now; they should consider how they will feel sometime down the road, when a conservative attorney general follows this precedent by ignoring a law liberals support.