February 25, 2014 (BreakPoint) – Imagine for a moment that someone sues you. You arrive in court, expecting your lawyer to defend your interests, only to hear him say that he disagrees with you and will now assist your adversary.
There would be pandemonium. Your attorney would be relieved of his duties, and in all likelihood, face professional censure.
Yet, something akin to this happened to the people of Virginia last week. It’s part of a trend that should trouble people regardless of their position on certain “hot-button” issues.
On February 13, a federal district court judge in Norfolk struck down Virginia’s ban on same-sex marriage. Judge Arrenda Wright Allen ruled that the voter-approved amendment to the Virginia constitution violated the 14th Amendment’s Equal Protection Clause.
Allen wrote that “Government interests in perpetuating traditions, shielding state matters from federal interference, and favoring one model of parenting over others must yield to this country's cherished protections that ensure the exercise of the private choices of the individual citizen regarding love and family.”
Sadly, there’s nothing new in this easy dismissal of millennia of tradition. What is new is the role played by Virginia’s new Attorney General, Mark Herring. Instead of defending the law, which is what as the Commonwealth’s lawyer you expect him to do, he joined the plaintiffs in seeking to overturn it.
Herring, who was elected by a tiny margin of 907 votes, also believes the ban violates the 14th Amendment. His solicitor general, Stuart Raphael, compared the ban on same-sex marriage to Virginia’s infamous ban on interracial marriage back in the 1960s.
Herring isn’t the first state attorney general to decline to defend the voters’ wishes on this issue: attorneys general in Pennsylvania, Illinois, Nevada, and California have also taken what USA Today called “an unusually supportive role” in the movement to overturn democratically-enacted laws.
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While declining to defend a state law is not unheard of, it is unusual. As Ed Whelan of the Ethics and Public Policy Center put it, this trend represents “a complete collapse of the line between law and politics . . . [T]he defense of these laws is not being litigated the way it ought to be, and defenders of marriage laws will have ample reason to believe the process is rigged against them.”
“Rigged” is not too strong a word. Once a lawyer agrees to represent a client, his ethical duty is to defend the client’s interests to the best of his or her abilities, even if he disagrees with the client.
This should go double or triple for state attorneys general. If you aren’t willing to defend the democratically-enacted laws of your state, you really shouldn’t run for the job.
When criminal convictions are overturned on account of inadequate legal representation, people agree that an injustice has been done. When the will of the people and millennia of tradition are overturned for much the same reason, it’s suddenly hailed as a victory for the “principles of equality upon which this nation was founded.”
Okay, so what does all this mean for believers, for the Church? First, even as we see growing signs of dysfunction at all levels of government, we cannot despair. Instead, as R. R. Reno wrote in the March issue of First Things, we are confident. “This does not mean,” he wrote, “confidence that tomorrow will bring news of great battles won.” But it does mean confidence in the fact that “Christ has triumphed over all worldly powers.”
Second, God calls us to be the best of citizens. As Chuck Colson said years ago on BreakPoint, “We can never retreat into our sanctuaries and neglect our civic responsibility to help set the moral tone of our culture. Leaving your neighbor in ignorance of his folly is inconsistent with the command to love him, and so political and cultural engagement [is] required of faithful believers. We are . . . to bring the influence of the City of God into the City of Man, working for justice and righteousness.”
And to Chuck’s words I say, “Amen.”
Reprinted with permission from BreakPoint