Can AGs Pick And Choose Which State Laws To Defend, Like Gay Marriage Bans?

Jan 31, 2014

Attorneys General around the country are split over whether they will defend their respective gay marriage bans. Some, like Florida Attorney General Pam Bondi, say she’ll defend the law, while others say they won’t. So, how are Attorneys General able to pick and choose which state laws they want to defend?

In 2008, more than 60-percent of Florida voters approved a constitutional amendment to ban same-sex marriage. It’s a law that’s currently being challenged in court by six gay couples and the gay rights group, Equality Florida.

Bondi says if she’s asked to defend the state’s gay marriage ban, she’ll do it. Just as she’d back medical marijuana were it to be passed, even though she now opposes it.

“I have said I’m not going to vote for it but I'll defend the lawsuit because that’s my job as attorney general,” said Bondi, speaking to reporters at a AP legislative meeting.

But, some AGs, like Virginia Attorney General Mark Herring, say they won’t defend their state’s same-sex marriage ban. And, Florida State University Law Professor Franita Tolson says that’s within their right.

“Similar to the federal government, state Attorneys General have enforcement discretion. So, think about how Eric Holder and the Obama Administration said that they wouldn’t defend the ‘Defense of Marriage Act.’ So, very similar, state Attorney Generals can decide that they also will or not defend state law,” said Tolson.

She adds it’s similar to how Attorneys General around the country were split over defending so-called ObamaCare.

“So, there’s a constitutional interpretation element to it. It’s not that they are deciding as a matter of right, that they don’t have to enforce state law. It’s only that they think this law is unconstitutional,” she added.

Gay marriage bans across the country are being challenged in the wake of the U.S. Supreme Court’s decision to overturn “the Defense of Marriage Act.”

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