Remember when traditional marriage advocates put their trust in constitutional amendments to keep activist judges from unilaterally imposing a requirement to recognize same-sex marriage? In Oregon, that’s not ancient history; 60% of voters approved the constitutional amendment just ten years ago, when several states did the same thing in response to state courts changing the definition of marriage. The strategy didn’t last, as a federal judge overturned the clause in the state constitution — after the state refused to defend it:
A federal judge threw out Oregon’s same-sex marriage ban Monday, marking the 13th legal victory for gay marriage advocates since the U.S. Supreme Court last year overturned part of a federal ban.
State officials earlier refused to defend Oregon’s voter-approved ban and said they wouldn’t appeal.
The National Organization for Marriage sought to intervene, but both U.S. District Judge Michael McShane in Eugene and a federal appeals court rejected its attempts to argue in favor of the ban.
This is the same situation as Proposition 8 faced in California. In both cases, the state refused to defend a law in federal court despite having been passed by the voters in a fully legal manner. As I wrote last year in the Supreme Court decision on Prop 8, the refusal of the Oregon’s Attorney General to represent the voters of his state is a lot more troublesome than the decision itself:
The voters in California amended the state constitution by referendum legally, to define a legitimate government policy regarding the recognition of marriage. The court is making the case that this is a matter for California to settle, not the federal courts, and there is a very good case to make there. However, the effect of this is to overturn an election whose legality was never in doubt just because some people didn’t like the outcome. That to me is a more dangerous outcome than a precedent-setting decision on standing.
In this case, the issue was settled by the voters. Oregon voters still had the opportunity to change their definition of government-recognized marriage through the same mechanism of a referendum or legislative action to amend the state constitution themselves, if they changed their mind on the issue. And again in this case, the Attorney General is the people’s lawyer, their legal representative as well as their top law-enforcement officer. If the state’s elected lawyer doesn’t want to represent the people in court, then he or she should resign and let someone else take the job. The people deserved to be represented in court by their paid attorney, whether the AG liked the law or not.
If attorneys argue — correctly — that rapists and murderers deserve a defense, then why should that be denied to the people of Oregon and California?