Executive branch can't pick and choose the laws it will enforce.
The Supreme Court is hearing arguments this week in challenges to two gay-marriage bans – the federal Defense of Marriage Act, which defines marriage as between one man and one woman, and Proposition 8, which does the same thing for the state of California. Indiana is in the thick of that battle, which is reason enough for Hoosiers to pay attention to it.
The Republican attorneys general of 21 states, including Indiana, have filed briefs with the court in defense of a state’s right to define marriage, including a ban on same-sex marriage if it chooses. The Democratic attorneys general of 15 states have filed briefs on the other side, basically asking for a federal edict that gay marriage be allowed. Sort of illustrates the divide in the country as a whole, doesn’t it?
It might seem that Indiana Attorney General Greg Zoeller finds himself on the side of the issue that has been abandoned by a majority of Americans (at least according to recent polls). But he’s not defending his own belief – he’s defending the state law, which is his legal responsibility as attorney general.
“People always think it’s a personal advocacy,” Zoeller said in a January interview, “when, in fact, I’m arguing our current state statute. If they tell us that we can’t limit the licensing of marriage, now we know.”
Zoeller’s remarks are important in view of the eroding authority of states to act these days and the resulting diminishing of our federalist system. And there’s one other reason they are right.
Members of the executive branch are supposed to carry out the laws legislators put before them – that is their only proper function in our system of separation of powers and checks and balances. Some people think that constitutional nicety is too limiting. Don Sherfeck, vice president of Indiana Equality Action, says he understands the argument up to a point. But he adds that others have decided that the obligation is not absolute when they believe a law is clearly unconstitutional. The Obama administration is not defending the federal Defense of Marriage Act, for example, and California is not defending Proposition 8, the constitutional amendment approved by voters in 2008.
That is a dangerous attitude. When we invite executive-branch members to decide which laws they will execute and which they will not, we are giving them legislative and judicial power as well as their executive duties. That will accumulate far more authority in one branch than is good for our freedom. If we tolerate that usurpation of power, the trend will continue to grow. And if we actually encourage it, heaven help us.