A Conscience Clause for Equal Protection

Earlier this month, Pennsylvania Attorney General Kathleen Kane announced she wouldn’t defend the state in an ACLU lawsuit challenging a ban on same-sex marriage. She’s following the same trail blazed by California, where state officials refused to appeal a district court ruling against the discriminatory Proposition 8. It cheers me enormously to see that more and more government officers are coming to recognize the fundamental injustice of these laws, and refusing to defend them where they still stand.

But I can’t deny that, in the past, I’ve argued strongly that a person’s individual beliefs aren’t an excuse for them not to discharge the duties of their job. I’ve said so about pharmacists who want to refuse to fill prescriptions for birth control on religious grounds; about town clerks who don’t want to solemnize same-sex marriages; and about doctors who don’t want to give fertility treatments to lesbians.

I’ve often said that people who have religious objections to performing a job are free not to take that job, but they’re not free to take the job and then refuse to perform it. And I think that principle still holds. Can I consistently believe this and still cheer on the government officials who refuse to defend unjust laws?

I’m open to arguments either way on this, but I see two important reasons that differentiate this case and make an attorney general unlike a pharmacist or a town registrar.

First of all, defending the state in a lawsuit like this one is a job requiring active and creative advocacy. Attorney General Kane isn’t being asked to mechanically stamp a form, recite a script, or ring up an order at a cash register. She’s being asked to think, to come up with reasons why the marriage ban is constitutional, to marshal arguments in its favor. If she genuinely doesn’t believe that the law is constitutionally valid, I don’t think she can or should be compelled to do that. The analogous scenario would be to ask an anti-choice pharmacist, not just to sell Plan B, but to compose a persuasive speech for customers about why they should buy it.

And it’s hard to see why antis would object to this in any case. Would they really want her to defend this law in open court, knowing she doesn’t believe in it herself? Wouldn’t they be worried (and rightfully so, in my opinion) that a person in those circumstances might not offer the most vigorous and effective case possible? (With her bowing out, Pennsylvania’s Republican governor Tom Corbett will be able to pick someone to defend the law in her stead.)

Second, there’s a balance-of-powers argument to be made here. The attorney general in Pennsylvania, as in most states, isn’t a mere rubber-stamping servant of the governor or the legislature. It’s a separate elected position, whose duties explicitly include advising the other branches of state government as to what the law and the constitution does and doesn’t permit. It’s reasonable and customary for attorneys general to push back when they believe that the government is misusing its power.

For instance, in New York City, the Bronx district attorney’s office has announced they’ll no longer prosecute people arrested under stop-and-frisk policing tactics, unless they can personally interview the arresting officer, because of a high rate of wrongful arrests. This is a remarkable stance, effectively accusing the police of falsely arresting innocent people, but it’s clearly within their power. Just because the police have arrested someone doesn’t require the DA to prosecute. The same way, just because a legislature has passed a law doesn’t require the AG to defend it as constitutional.

In my previous post about religious discrimination in health care, I said this:

The law is clear: doctors can and should be free to exercise their professional judgment in deciding what treatment is medically appropriate; but they cannot arbitrarily deny treatment based on medically irrelevant characteristics of the patient.

This principle still applies here, because it is part of the attorney general’s job to use their professional judgment to decide what’s constitutionally appropriate. Kathleen Kane isn’t basing her refusal to defend the state’s gay-marriage ban on legally irrelevant facts, such as not liking the fashion sense of the legislators who voted for it. She’s basing it on her professional opinion that laws denying recognition to same-sex couples violate the equal-protection guarantees of the Pennsylvania and U.S. Constitutions.

About Adam Lee

Adam Lee is an atheist writer and speaker living in New York City. His new novel, Broken Ring, is available in paperback and e-book. Read his full bio, or follow him on Twitter.

  • Jason Wexler

    My concern here is that we are “rationalizing” because we like the decision that the AG is making. And yes I like the decision… however what happens when after we’ve set this precedent, a governor or AG or both working together, use the logic you’ve laid out to veto popular legislation or constitutional amendments?

    Politicians seem to be universally opposed to Marijuana legalization, but what happens if (as almost did here in Colorado) the governor and AG decide the recently passed constitutional amendment is invalid and when someone opposed to Marijuana legalization sues to overturn it, they say “”your right”? Or perhaps it’s an ethics in government amendment, or a religious freedom issue. If New York voters passed a state constitutional amendment to limit the power of religion in politics, one which you believed was within the scope of the first amendment of the US constitution, would you still be arguing that Governor Cuomo and AG Schneiderman should use their professional judgement if they declined to defend the amendment when the religious right sues to overturn it?

    I don’t disagree that AG Kane isn’t the best person to defend the particular law in question, but isn’t law supposed to be an adversarial process? Aren’t defense attorney’s supposed to do their best to defend even a guilty client? As is unsurprising I am sure, I don’t necessarily agree with the way our common law system works, and I would love to see it replaced by something better, at least I would if I could devise something better. Shouldn’t we use the system we have as it is designed until we can design something better though?

  • http://camelswithhammers.com/ Dan Fincke Camels With Hammers

    First of all, defending the state in a lawsuit like this one is a job requiring active and creative advocacy. Attorney General Kane isn’t being asked to mechanically stamp a form, recite a script, or ring up an order at a cash register. She’s being asked to think, to come up with reasons why the marriage ban is constitutional, to marshal arguments in its favor. If she genuinely doesn’t believe that the law is constitutionally valid, I don’t think she can or should be compelled to do that.

    I’m not sure that this distinction holds up. It is part of the legal profession that you be an advocate even where that does not coincide with your completely balanced and reasonable opinions of things. Your job is to serve a role in a larger system that determines what is just, not determine it for yourself. You are to make the strongest side for a case even if it is not the one you are most personally persuaded of and even if it is stronger than you think is ultimately the truest case.

  • MV

    It’s also called the justice system. The ultimate questions is this: do we want a legal system or a justice system? I’m not really interested in a legal system if it fails at justice. Can we say we live in a civilized society if we lack a justice system? If our legal system does not deliver justice is our legal system legitimate?

  • ImRike
  • http://flickr.com/photos/sedary_raymaker/ Naked Bunny with a Whip

    Can I consistently believe this and still cheer on the government officials who refuse to defend unjust laws?

    On the one hand, we have people refusing to do their job because they want to discriminate against people. On the other hand, we have people refusing to do their job because they don’t want to discriminate against people. If you are against discrimination, these are not equivalent.

    I’ve often said that people who have religious objections to performing a job are free not to take that job, but they’re not free to take the job and then refuse to perform it.

    It seems to me like you’re feeling uncertain because you’re treating this as though it is your position. As far as I can tell, it’s actually a consequence of your position that people should not discriminate against other when fulfilling their responsibilities.

    (I would also argue about whether these are even comparable situations. Unlike the counterpoints you linked to, A. G. Kane is not targeting individuals with her action, and nobody will be denied a service, embarrassed, or especially inconvenienced because of it. In fact, the job will get done by someone just as qualified if the Governor assigns someone else.)

  • Austin

    In this case, it isn’t ambiguous at all. In law, the professional code of conduct demands that you do not take actions that you know will lead to a perversion of the law or miscarriage of justice. A defense attorney shouldn’t defend a client they know is guilty, a prosecutor shouldn’t prosecute an individual they believe to be innocent. These are not just allowed/accepted, they are expected to do otherwise is professionally unethical.

  • Azkyroth

    I’ve often said that people who have religious objections to performing a job are free not to take that job, but they’re not free to take the job and then refuse to perform it. And I think that principle still holds. Can I consistently believe this and still cheer on the government officials who refuse to defend unjust laws?

    Is upholding the law to the detriment of justice part of the duties of the job? If not, this is an apples and orangutans comparison.

  • Azkyroth

    Also, can we (mainly the commenters) pretty fucking please stop pretending that whether or not someone is RIGHT is an irrelevant consideration in judging their conduct?

    Or, if we’re going to pull out that tired old saw about how people who are wrong don’t think they’re wrong and who are we to use reason and evidence to judge, can we at least be consistent and condemn prosecution of…well, fuck, anyone, for anything, really?

    Oh, crap, certain chuckleheads would actually be on board with that, wouldn’t they. Forget I said anything.

  • Elizabeth

    I saw him on The Rachel Maddow Show last night. He said that he felt Pennsylvania’s Defense of Marriage law violated the state constitution.

  • David Simon

    (With her bowing out, Pennsylvania’s Republican governor Tom Corbett will be able to pick someone to defend the law in her stead.)

    This is *crucial*, and it’s what makes the difference between this and the pharmacy example. If your pharmacist refuses to give you meds, and there isn’t another pharmacy available, then you’re just SOL. But what you’re saying here is that this attorney is simply bowing out of taking a job that they do not think they could (or more specifically, should) complete, and passing the baton to somebody else.

    It’s like if a pharmacy had two people available to run the count, and one asked the other to do all everything involving some medication X. It’s not what they really should be doing under their contract, but when it’s available it’s still a better choice than allowing the pharmacist control over a part of their job that they can’t handle well.

  • http://avoiceinthewilderness-mcc1789.blogspot.com/ Michael

    Correction-defense attorneys can and do defend clients they know are guilty, since the burden of proof is on the prosecution. They cannot, though, put a client they know is guilty on the stand to testify they are innocent (they only call the defendant as a witness on their own behalf rarely anyway-it lets the prosecutor cross-examine them, which is not a good thing).

  • asonge

    I don’t think you can slice this either way. I think the AG is going to have to make a judgement call based on the merits (as a judge would in a case). There are unchallenged and plainly unconstitutional laws that are ignored constantly, so I think the AG should have the prerogative to just ignore those laws. The other problem is obviously that there are laws under constitutional challenge that are not plain, but may not be “fully defensible”.

    While SCOTUS doesn’t like the precedence/standing issues set in the Prop 8 and DOMA trials, both featured extra-executive (Prop 8 being extra-governmental) litigants who picked up the defense after the executive dropped their defenses (BLAG in DOMA, and those who brought the ballot measure in Prop 8). While they denied the Prop 8 standing, who else *is* supposed to bring complaint when the executive stops enforcing laws it thinks are unconstitutional? Our legal system values adversarial representation, and surely this is more accurate than non-full-throated attempts at defense against controversial bills.

  • Gail

    I see the distinction between this case and the pharmacist example as being rooted in the reasons behind the objection. I think a pharmacist should refuse to dispense a medicine based on medical expertise (for example, a pharmacist notices that the prescribed drug will interact poorly with another of the patient’s medicine), but not for a religious reason, since the pharmacist is in a medical field. An AG is in a legal field and should base her actions on her legal opinion. This might also be a moral issue, but I think Kane is acting out on her legal opinion. She sees how the legal issues are playing out federally and in other states, and that has informed her legal opinion. I’m not sure this even applies as part of the “conscience” clause, since that is basically a term made up as an excuse for people outside of the religious professions to allow their religion to affect their professional performance.

  • Infophile

    In fact, since the accused is guaranteed an attorney, this means that no matter how obviously-guilty they are, some public defender will be obligated to defend them. This doesn’t apply to prosecutors though, as they can always decline to prosecute. It all goes into “Innocent until proven guilty.”

  • Jason Wexler

    I’d love a justice system as opposed to a legal system. How do we design one? Just one of many examples of things that are wrong in our legal system is disproportionate conviction of innocent poor and minority people and the exoneration of guilty rich people. This is exasperated by many laws meant to prevent this problem, such as double jeopardy, inadmissibility, the adversarial process that I and others have discussed, which allows and requires in some cases a defense attorney to defend someone they know to be guilty.

    We can sit and pontificate from our historical vantage or our audience vantage on this case or that, and we may even usually be right, but so often it will be the case that we are calling these cases inconstantly and without regard to our own biases. I asked Adam how he would react if his states governor AND AG refused to defend the constitutionality of a law he supported but they didn’t, and I can even throw another twist in, in that they are openly admitting its purely political a super veto over the legislature or the electorate. However what about say Texas and its government refusing to defend the constitutionality of a law meant to protect minorities because they don’t like it? Why is AG Kane using her professional judgement, but why would it be the case that nearly everyone on this board would howl about the inappropriateness of the government in the example I just gave? I mean other than political partisanship.

    It may seem obvious to us and certainly to our future descendents that this particular law is bad, unjust and immoral, but sometimes we are going to get it wrong, and sometimes the opposition is going to apply the same tactic, and call it justice just as we might want to. Who gets to decide what is just?

  • J-D

    The controlling law (for the Attorney General) is the Commonwealth Attorneys Act of 1980. Paragraph (c) of section 204 of that law does say ‘The Attorney General shall represent the Commonwealth and all Commonwealth agencies … in any action brought by or against the Commonwealth or its agences …’ but it also goes on to say ‘The Attorney General may, upon determining that it is more efficient or otherwise is in the best interest of the Commonwealth, authorize the General Counsel … to initiate, conduct or defend any particular litigation … in his stead.’

    As far as I can see, that legally covers what the Attorney General has done. The only way I can see that you could argue that the Attorney General has not done her legal duty is if you argued that what she has done, in authorizing the General Counsel to defend this litigation in her stead, is not more efficient or otherwise in the best interest of Pennsylvania. I suppose you could theoretically argue that it would be in the best interest of Pennsylvania for this lawsuit to succeed and that the most efficient way for the Attorney General to achieve that result would be to argue the defence herself and do it ineffectually, but I don’t think that’s what her critics are arguing.

  • Austin

    I don’t recall stating that attorneys don’t or can’t defend clients they know are guilty. I said they ‘shouldn’t’ defend them. There’s a difference between the ‘law’ and legal ethics. When you KNOW the person is guilty, you’re generally supposed to get them a plea deal. An aggressive defense of an individual you KNOW (emphasis on the know) is guilty is not ethical, although it is entirely legal (given you’re not a party to perjury).

  • Austin

    Notice I didn’t use the word ‘represent’ I used the word defend. You can represent someone without defending them.

  • http://avoiceinthewilderness-mcc1789.blogspot.com/ Michael

    I don’t think legal ethics actually says that. In cases where a defendant is obviously guilty, defense attorneys probably will try to cut a deal (assuming the prosecution can prove their guilt). They are obligated by legal ethics to give their client a vigorous defense however, regardless of guilt. In fact, an attorney can’t dump a client without their permission or leave from the judge (if, as you suggest, they didn’t want to defend a guilty person) while proceedings are ongoing precisely because of this.

  • http://avoiceinthewilderness-mcc1789.blogspot.com/ Michael

    Exactly. The burden of proof is on the prosecution, so even if the defendant is “obviously guilty” it still has to be proven if they don’t make a plea deal (though in such a case a deal is likely to happen).

  • http://avoiceinthewilderness-mcc1789.blogspot.com/ Michael

    In the case of a criminal defense attorney, representing a client is the same as defending them.

  • Austin

    Defending their interests and defending their innocence are two separate things.

  • Austin

    Getting someone a plea deal is not representing them, not defending them.

  • Austin

    We’re going a little off topic, so I’m going to stop here. Feel free to do some research on legal ethics. A few things I’ll close with:

    1. While you are generally not allowed to ditch your clients during trial on a whim (this is a rule to put the brakes on unscrupulous lawyers), there are numerous circumstances under which you can ditch a client even during trial.

    2. Please note, there is a major difference between having a fleeting suspicion that someone might be guilty and KNOWING they are guilty. The latter requires evidence, and the second you have evidence of your client’s guilt, you immediately run into the problem of candor to the tribunal.

    Television has greatly mislead people about the realities and ethics of law.

  • http://avoiceinthewilderness-mcc1789.blogspot.com/ Michael

    1. I know exceptions do exist. As I said, lawyers require judicial permission to quit while trial is ongoing usually.

    2. I also noted this, with the fact that lawyers cannot allow clients that have told them they are guilty testify otherwise, as this would be subornation of perjury. So yes, if they are aware of a client’s guilt, the representation becomes more difficult, though it does not terminate.

    Misrepresentations of the law in pop culture is a pet peeve for me. However even those with legal training (such as myself, and I’d guess you also) can disagree over these issues. That’s inevitable, and built into our adversarial system.

  • http://www.patheos.com/blogs/daylightatheism Adam Lee

    however what happens when after we’ve set this precedent, a governor or AG or both working together, use the logic you’ve laid out to veto popular legislation or constitutional amendments?

    I agree that this is a valid concern; in general, public servants should uphold the law as written. But presumably, if the law in question is meant to protect some group of people who aren’t being protected, those people will have standing to file a lawsuit and demand that it be enforced. That’s not a hypothetical scenario: it’s what always happens in states where right-wing legislatures pass laws trespassing on reproductive choice or church-state separation, for example.

    If there’s anything that makes this particular scenario unique, it’s that opponents of gay marriage can’t cite any actual or even plausible harm they would incur from legalizing it.

  • http://www.patheos.com/blogs/daylightatheism Adam Lee

    I might cheer on this person’s stand as a matter of civil disobedience, but I certainly don’t think he can claim any actual legal authority to do what he’s doing. It’s not clear to me whether he realizes this.

  • ImRike

    I agree with you and I am cheering him on, also. But at the same time, shouldn’t I look at him the same way I look at the pharmacist who won’t dispense birth control pills? If he doesn’t want to do the job as described, he should find a different livelihood? The only difference in my discrimination is that I agree with what the county official did, while I disagree with the pharmacist.

  • Austin

    My apologies, I didn’t mean to imply that we can’t disagree, it was just that from a couple of your statements (in their context), it seemed that you were unaware of some issues regarding legal ethics. For instance, while you need the courts approval to cease representing a client during trial, this was put there to stop attorneys from ditching a client simply because they thought they were going to loose, and causing mistrials. Thus raising that point with regards to the topic being discussed doesn’t really fit. Furthermore, the case Adam is discussing happened at the point of deciding whether or not to actually represent the client. At this juncture in time you ARE required to excuse yourself (no approval necessary) from representing the client if you feel for any reason you can’t provide them with a vigorous defense.

  • http://avoiceinthewilderness-mcc1789.blogspot.com/ Michael

    Well, it seems I misunderstand you myself. I felt that your comments were saying that if a defense attorney felt their client was guilty, they should quit, and thus my point that they can’t simply do this, especially in the middle of a trial. Of course they shouldn’t represent someone if at the outset they don’t feel able to, for any reason. I likely overreacted due to my annoyance with the common refrain of “How can you defend a guilty person?” which disregards the complexity of all that.

  • http://avoiceinthewilderness-mcc1789.blogspot.com/ Michael

    Sure it is. Getting a good plea deal is representing your client just the same as defending them on the merits of the case.

  • http://avoiceinthewilderness-mcc1789.blogspot.com/ Michael

    They can be the same thing, although they don’t have to be. One can defend a client’s interests without claiming they are innocent (like the plea deal example above).

  • Austin

    You stated they are always the same, which simply isn’t true

  • Austin

    typo – I meant getting someone a plea deal is representing them NOT defending them. Representation is not the same thing as defense for a defense attorney as you’ve stated.

  • http://avoiceinthewilderness-mcc1789.blogspot.com/ Michael

    Well I think representing someone’s interests in a criminal case necessarily involves defending them, yes.


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