Do state officials have the right to decline to defend their state’s laws? As we noted before, it is not an easy question. But University of Denver law professor (and rabbi) Kris McDaniel-Miccio, who is a plaintiff in one of the lawsuits challenging her state’s gay marriage ban, disagrees: She penned an open letter to Colorado Attorney General John Suthers arguing that it is his duty to not defend the law.

Why? When he was sworn into office, Suthers pledged to uphold the laws and the constitutions of the United States and Colorado. With more than two dozen courts unanimously siding with marriage equality, including the Tenth (twice) and Fourth circuits, McDaniel-Miccio argues that the federal question is settled and that Suthers is not fulfilling the duties of his job by pressing forward.

Previously, Suthers stated that he was only reluctantly defending Colorado’s Amendment 43, again, as a matter of duty, and despite his disagreement with the law.

Open Letter: Drop the Defense

Professor McDaniel-Miccio’s open letter, published in Denver Westword, reads in part:

McDaniel-Miccio goes on to note that “myriad federal Courts (e.g., Tenth, Fourth, etc.) and state Supreme Courts have found that such laws violate the Fourteenth Amendment to the American Constitution,” and because of this, he should drop his defense of the ban.

You claim that you don’t believe in the underlying premise of the Constitutional bar. You claim that marriage between two consenting adults should be permissible regardless of gender. You also claim, after your first defeat in the courts, that you actually know that Colorado’s discriminatory amendment will inevitably fall. Yet you continue to defend the indefensible.

The U.S. Supreme Court did not tie marriage to procreation in the Loving case (interracial marriage) or in cases involving inmates or deadbeat dads. They declared that marriage was a fundamental right because it is a vital to being human. I would also assume that when you tied the knot, as I did, you didn’t promise to “love, honor and procreate.” Thus to use the “marriage/procreation” standard is not only culturally absurd but legally specious.

What About the Other Half of That Oath?

While Professor McDaniel-Miccio makes a lot of great points (especially regarding the “procreation” argument that seems to be appearing in states’ briefs nationwide), there is one question that remains: How do you choose between your duties to the state and the federal government?

Suthers’ oath had two parts: to defend the U.S. constitution and laws as well as those of the State of Colorado. Amendment 43, as shameful as it is, is part of the state’s constitution. And in United States v. Windsor, the Supreme Court said that the definition of marriage was historically a state’s domain.

One could argue that Suthers’ duty to defend his state’s marriage definition therefore trumps his duty to agree with intermediate appellate court opinions – opinions which are all but guaranteed to be reviewed by the U.S. Supreme Court next term.

Want to spend more time practicing, and less time advertising? Leave the marketing to the experts.

Of course, one could also argue that federal guarantees of equal protection trump silly state amendments, no matter what.

Like we said before: It’s not an easy question.

Related Resources:

  • Judge Nancy Moritz Sworn In; Other Judicial Vacancies Remain (FindLaw’s U.S. Tenth Circuit Blog)
  • Aereo Pivots, Arguing It’s an Online Cable and DVR Company (FindLaw’s U.S. Tenth Circuit Blog)
  • Flurry of Action as Fed. Court Strikes Colo.’s Gay-Marriage Ban (FindLaw’s U.S. Tenth Circuit Blog)

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

Civil Rights

Block on Trump’s Asylum Ban Upheld by Supreme Court

Criminal

Judges Can Release Secret Grand Jury Records

Politicians Can’t Block Voters on Facebook, Court Rules