Tierney Blog

Refusing to Defend Unconstitutional Actions Happens All the Time

During the debate over marriage equity, any number of attorneys general refused to defend existing state same sex marriage bans and a few affirmatively challenged them. These high profile decisions prompted much hand ringing and more than a few law review articles that directed an academic eye on decisions by attorneys general to refuse to defend or to challenge state government decisions.

I greeted this flurry with a yawn and was quoted many times saying "this is nothing new...it happens all the time." It does, and it should. Bluntly speaking, the primary responsibility of an attorney general is to defend the constitution and those laws that are passed that fall within it. It is not the responsibility of an attorney general to defend the unconstitutional actions of other state office holders.

And yes, it does happen all the time as evidenced by these two decisions - one from Tennessee and one from Maine. These two attorneys general are to be commended for acting in the highest tradition of their office.