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March 30, 2014

ZOELLER: Justice system needs both sides represented in court

Several same-sex couples recently filed lawsuits seeking to strike down Indiana’s traditional marriage definition law. As Indiana attorney general, I have been asked why my office is defending the statute in court when some AGs in other states are not defending their states’ traditional marriage laws from similar lawsuits. I explain that I took an oath to represent and defend Indiana’s state government and its existing statutes. I don’t make the laws – that’s the Legislature’s job – but I have a solemn obligation to defend those laws while there is a good-faith defense, and I cannot shirk my duty nor abdicate that responsibility to others.

This is not personal advocacy on my part or by the lawyers who work in my office. Whenever the State of Indiana is sued, you – the taxpayers and citizens of the state – are really being sued collectively, and you are entitled to counsel. The correct course of action is for the attorney general to provide a good-faith defense – within the resources already available – until and unless the U.S. Supreme Court decides to the contrary. The justice system cannot work if one side is not represented by counsel or if the attorneys presume that they are judge and jury in their own cases and fail to zealously advocate for their clients.

Some have asked if in providing this defense I am on “the wrong side of history.” They note my counterpart, the Kentucky attorney general, recently announced he no longer would defend his state’s traditional marriage definition. But even he defended his state’s marriage law at the federal district court stage, and his decision not to continue representing his state’s position on appeal does not mean the law will go undefended. Instead, the Kentucky governor had to hire outside counsel to defend the statute in court. Was the Kentucky attorney general on the “wrong side of history” when he represented his client, but suddenly on the “right side of history” when outside lawyers were called in at significant cost to Kentucky taxpayers to do so?

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