A Lawyer Acting as Lawmaker

This post was written by Kira Nelson


Instead of trying to uphold her state’s laws, Oregon Attorney General Ellen Rosenblum has announced not to defend them.

Ellen Rosenblum, Attorney General for the State of Oregon, announced on Thursday, February 20, in a legal filing that she will not defend the state’s ban on gay marriage claiming that it violates the national constitution.

Rosenblum isn’t the first attorney general to take such a stance. Six state attorney generals have refused to defend marriage laws in their states, among them Kathleen Kane of Pennsylvania and most recently Mark Herring of Virginia.

United States Attorney General Eric H. Holder Jr. announced in an interview on Monday, February 24,  that state attorneys generals are not obligated to defend laws that they believe are discriminatory, specifically laws that define marriage as between one man and one woman.

Rosenblum’s decision was contained in a brief filed in Eugene with U.S. District Judge Michael McShane. McShane is scheduled to hear a challenge to the ban on same-sex marriage that was voted into the state constitution by the citizens of Oregon in 2004.

Rosenblum’s actions and the actions of attorney generals in other states raise some interesting questions about the role of the attorney general. The job of the attorney general is to defend the laws of his or her state. You can think of the Oregon as being

Rosenblum’s client. Thus legally Rosenblum is required energetically argue in favor of Oregon’s existing laws even if she personally disagrees with them.

Ed Whelan, a prominent conservative legal analyst who current serves as President of the Ethics and Public Policy Center and writes weekly bench memos on United States Supreme Court decisions, argues that attorney generals that refuse to defend their states laws are violating their duties as lawyers.

Under well-settled principles of the American adversary system, a lawyer is ethically obligated to represent his client’s legal position zealously in court. If there are nonfrivolous arguments that can be made in favor of the client’s position, then the lawyer is required to advance the most advantageous arguments in favor of his client. A lawyer may never fail to advocate a defensible position simply because he personally believes it to be legally incorrect.

When the role of the attorney general is understood properly, it is not that of a lawmaker. The role of an attorney general is to energetically represent the state’s interests in the courts. By refusing to defend a law that the people of Oregon voted for in 2004, Rosenblum is proving she doesn’t want to be the attorney general. If Rosenblum wants to be a lawmaker, rather than a law defender, I would recommend she run for the legislature.

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