I’m Conflicted

A recent decision by the Illinois Attorney General has thrown me into one of those “On this hand…but on the other hand..” internal conflicts.

The Attorney General and another Illinois prosecutor have announced that they will not defend that state’s ban on same-sex marriage against a challenge being brought by couples whose application for marriage licenses were denied. Their reasoning was that they believe the ban to be unconstitutional under the equal protection clauses of both the state and federal constitutions.

I agree with that conclusion, but that doesn’t resolve the conflict.

The duty of an Attorney General is to defend the laws of his jurisdiction. It’s the duty of the judiciary to decide whether those laws are proper. Separation of powers is one of the most fundamental elements of American government, and our courts depend on the adversarial system to sharpen clarify the questions presented. And even criminals and legislators (whose ranks are not always as distinguishable as we might wish) deserve representation. It is the job of Attorneys General to defend laws whether they personally believe those laws are fair or prudent.

On the other hand, criminal prosecutors who proceed with cases against people they know to be innocent violate their oaths of office, and their duty to justice, and we rightly condemn them. They aren’t duty bound to prosecute everyone initially charged with a crime; we expect them to apply their best judgment and to proceed only when there is a substantial likelihood of guilt.

Our elected officials are sworn to uphold the Constitution. When they are convinced that a particular enactment cannot survive constitutional scrutiny, must they spend time and resources defending it? What is the weight of evidence required before such a decision is appropriate?

There are also questions of credibility: wouldn’t the people of Illinois be more likely to accept a decision by a court than one by the state’s chief lawyer?

I agree with the Illinois AG about the ban’s unconstitutionality. I’m not entirely sure I agree with her decision to forgo its defense.


  1. But, if they don’t defend the law, it then cannot be overturned by a trial judge (or jury). Are you sure their hearts are in the right place?

  2. Can a state official, appointed or elected, refuse the uphold the laws they have sworn to protect? I, too, believe that law is wrong but with any job we can’t pick and choose which responsibilities we will perform or those we will refuse to do.

  3. I share your concen, Sheila. I can understand certain rare instances where, because of very clear controlling precedent and/or something universally considered repugnant, an attorney general might decline to defend a law’s constitutionality. But this would appear to be a case of first impression in Illinois, and the “equal protection” clause of each state’s constitution is either somewhat different in form or has a particular interpretive history. It isn’t a slam dunk that the Illinois Supreme Court would throw its marriage law out, as much as we might find that proper and desireable.

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