Sorry for the absence, readers! We’ve been short-staffed due to plague at work. This week will be usual posts, and next week the atheist round of the Turing Test will begin.
I‘m a little troubled by the way same-sex marriage is becoming de facto legal in Pennsylvania. When I was having SCOTUSblog parties back in June, I found the reasoning based on standing kinda messy. If a law is challenged, it seems like the appropriate state officials should be obligated to defend it. Ducking it seems like a odd kind of de facto veto. And not a proper civil disobedience-y one, a la Mayor Jason West of New Paltz, who conducted then-illegal marriages and was charged for it.
And now this is playing out in Pennsylvania. The PA Attorney General Kathleen Kane declined to defend her state’s ban on same-sex marriage, and it’s unclear who will pick up the baton, or if anyone will be left with standing to do so. The proper way to overturn laws is repeal or, if they’re actually unconstitutional, letting them have their day in court. Not short-circuiting the system over a conscience objection.
Here’s how Kane explained it:
“I looked at it this way,” Ms. Kane said in explaining her decision in the lawsuit. “The governor’s going to be O.K.” But who would represent ordinary people, “the Daves and Robbies”? she asked. “Who represents the Emilys and Amys?”
“As attorney general,” she said, “I choose you.”
But an attorney general isn’t there to do the choosing. She’s meant to pick all of us, and to defend the system of laws and checks that keep us safe from the whims of politicians, even when we support them. The Emilys and Amys, Daves and Robbies, can depend on their legislators, but not on the judicial branch, which is there to keep the system running, not to save us from the stupidity we may have built into it. I’m reminded of this exchange from A Man for All Seasons.
William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I’d cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!
Down in Louisiana, there’s been another legal mess as a Baton Rouge Sheriff has been entrapping and arresting gay men for having sex, relying on a still-on-the-books law criminalizing “the unnatural carnal copulation by a human being with another of the same sex or opposite sex.” It was essentially struck down by Lawrence v. Texas, but we don’t traditionally leave constitutional interpretation to local Sheriffs.
The District Attorney has been refusing to prosecute each case the rogue sheriff creates, but that’s a patchwork solution and a poor precedent. We can’t selectively ignore the bad laws we pass. Part of our penance is going through legal channels and doind the tedious work to unwind all the knock on effects they’ve had. Just all agreeing to pretend the law doesn’t exist is a terrible habit.
Prosecutorial discretion is always a dangerous tool. As G.K. Chesterton says in Orthodoxy, “Above all, if we wish to protect the poor we shall be in favour of fixed rules and clear dogmas. The rules of a club are occasionally in favour of the poor member. The drift of a club is always in favour of the rich one.”