There seems to be a new legal trend taking place in America that is not good. Unfortunately it is a subtle one. It’s one many conservatives sense is wrong in their gut, but they can’t quite put their finger on why. It is upsetting the delicate balance of power in our form of government. And Tennessee’s legislature has been quietly grappling with it to no avail.
The seeming trend is for states’ Attorneys General not to defend a state law they don’t like when those laws are challenged in court. Just last week, the Attorney General for Illinois actually joined in a lawsuit brought by homosexual activists in Illinois who were alleging that the state’s marriage statute, defining marriage as between a man and woman, violates the Illinois constitution. In essence, the person envisioned to be the defender of the law joined the opponents of the law. And the Attorney General in California refused to defend Proposition 8, a ballot measure approved by the state’s voters that defined marriage as between one man and a woman.
Some might say, “What’s the big deal?” The big deal is that if the state’s Attorney General doesn’t defend the laws of the state, who will? Even a criminal who looks as guilty as they come is entitled to a defense. And the state will even provide the defense if you can’t afford one yourself. But the allegedly “guilty-looking” marriage laws in Illinois and California aren’t getting a “defense” from the state.
In fact, after the California Attorney General refused to defend Proposition 8, the coalition that worked on getting the ballot measure passed even had to convince the courts that it had a right to defend the measure. Had they failed, then the “other side” would have won by forfeit, as they’d say in sports.
Let’s not kid ourselves about what may be going on here. In California, where the Attorney General is elected on a statewide basis, it is probably clear that siding with homosexual marriage is a political winner for the Attorney General at the ballot box. The political pros and cons for the elected Attorney General in Illinois are perhaps a bit less clear but it’s one of the minority of states that has never gotten a marriage amendment on the ballot.
Fortunately, going with the political winds of popular opinion is not an issue for Tennessee’s Attorney General because that position is filled by an appointment made by the state’s Supreme Court, Tennessee being the only state in the nation who uses that procedure. So that is good.
But, at the same time, Tennessee’ Attorney General is not accountable to anyone. There is, of course, no accountability to the public. But there is also no accountability to the Governor, who is to execute the laws but may have no one to defend his or her right to do so. And there is no accountability to the legislature that, in its collective wisdom as a separate and equal branch of the government, thought a law in question was constitutional. That is not good.
The legislature has wrestled with this question off and on for several years. There have been Resolutions offered to put on the ballot a proposition that the Attorney General be elected by the people. But those Resolutions have never been approved by the legislature.
I don’t know that a popular vote is the solution, but at least a number of our legislators understand, correctly, that accountability is needed in government. Government is power, and power can corrupt even the best of us. The absolute power the Attorney General holds to defend or not to defend a law means that our laws could be left without defense should our state’s Attorney General begin to make decisions like those of his colleagues in California and Illinois.
I don’t know exactly what the answer is, but with the trends in the law and the liberal legal viewpoints being taught lawyers in today’s law schools, it is a problem that our state needs to address and head off at the pass.
The Tennessee Constitution says that “all courts shall be open” but what good is that guarantee is if one side doesn’t show up?