Declining Controversial Cases: How Marriage Equality Changed the Paradigm

Abstract

Until recently, state attorneys general defended their states’ laws as a matter of course. However, one attorney general’s decision not to defend his state’s law in a prominent marriage equality case sparked a cascade of attorney general declinations in other marriage equality cases. Declinations have also increased across a range of states and with respect to several other contentious subjects, including abortion and gun control. This Essay evaluates the causes and implications of this recent trend of state attorneys general abstaining from defending controversial laws on the grounds that those laws are unconstitutional, focusing on the marriage equality cases as its example. It argues that reputational factors, in addition to legal and political considerations, play a role in determining whether attorneys general will defend their states’ laws when they may have a basis for declining to do so. Moreover, the impact of nondefense goes beyond the directly connected litigation and can have negative ramifications for the public’s perception of the legal system and for the functioning of direct democracy.

Keywords: Attorney general, State attorney general, Executive, Duty to defend, nondefense, Constitutional nondefense, Same sex marriage, Marriage equality, Direct democracy, Ballot initiative, Expressivism, Preference , alsification, Public preference, Reputation, Politics, Media