The attorneys general of 21 states, including Indiana, have filed briefs before the Suprem Court in defense of the right of states to ban same-sex unions. The attorneys general of 15 states have filed briefs on the other side of the issue. Indiana Attorney General Greg Zoeller explains his actions:
Faced with a dramatic shift in public opinion on same-sex marriage, Zoeller insists his leadership on the issue should not be seen as opposition. Instead, he says, he is arguing in defense of Indiana’s existing marriage law, and for the right of individual states to determine their own marriage rules.
“People always think it’s a personal advocacy when, in fact, I’m arguing our current state statute,” Zoeller said in a January interview.
The vice president of Indiana Equality Action takes issue with that:
Sherfick said he understands, to a point, Zoeller’s argument that an attorney general has an obligation to defend the state’s law. But, Sherfick added, others have decided that obligation is not absolute when they believe a law is clearly unconstitutional. The Obama administration is not defending the federal Defense of Marriage Act and California is not defending the constitutional amendment approved by voters in 2008.
That seems like a dangerous attitude to me. A proper separation of powers requires members of the executive branch to merely carry out the laws legislators put in front of them. When they decide which laws they're going to execute and which they aren't, they're acting partly as legislators and partly as members of the judicial branch. When they get into this habit, which the Obama administration clearly embraces, they accumulate far more power than is good for us. But if we tolerate it, they will keep doing it.