Obama gets out of way of gay marriage

Stops defense of federal law

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“The right to marry is not an abstract principle any more than might be said about the right to vote, the right to speak and the right to practice one’s religion,” Mr. Olson said. “Every day our fellow citizens are denied their most basic civil rights that their friends and neighbors freely enjoy. … [T]hat discrimination inflicts countless injuries.”

A precedent exists for attorneys general refusing to defend state laws if they think those laws are unconstitutional. It’s just that it’s a “very, very rare thing,” said ADF’s Mr. Campbell.

“We’re talking about hundreds of years of history, 50 states, and there have only been a handful of instances,” he pointed out.

One such example emerged in Wisconsin in 2009. Attorney General J.B. Van Hollen, a Republican, refused to defend a recently passed domestic-partnership law, saying he thought it violated the state’s constitution.

In response, Gov. James E. Doyle, a Democrat, hired outside counsel to defend the law in his place. No such counsel was retained by California Gov. Arnold Schwarzenegger to defend Proposition 8.

“The critical, critical difference is that Wisconsin [officials] went out and hired a private law firm to take the case,” said Mr. Campbell. “They didn’t leave the law undefended. They hired independent counsel, which isn’t happening here.”

Rick Jacobs, president of the Courage Campaign in Sacramento, Calif., argued that Mr. Brown’s refusal to take the case doesn’t leave Proposition 8 defenseless. The voters always have the option to boot the governor and attorney general out of office, or even launch a recall election, if they disagree with their decisions.

Since Mr. Brown, a Democrat, was elected governor in November, California voters must feel reasonably comfortable with, or at least not strongly opposed to, his decision to take a pass on defending Proposition 8, Mr. Jacobs said.

“People could have voted for [Republican gubernatorial candidate] Meg Whitman,” said Mr. Jacobs. “They didn’t. When you look at this, you see that there are checks and balances in place.”

Mr. Jacobs insists he would feel the same way even if the situation were reversed, and a conservative governor and attorney general refused to defend a ballot measure legalizing same-sex marriage.

“Yes, I would. I don’t think these [questions] should be on the ballot to begin with. I don’t think it’s very American to vote on each other’s rights,” said Mr. Jacobs. “In that scenario, that governor and attorney general would be subject to the same checks and balances.”

Count the National Organization for Marriage’s Mr. Brown among the skeptics.

“That’s absurd. If the shoe were on the other foot, Rick Jacobs would not be saying this,” he said. “This is not about abiding by the law, this is about getting the result they want even if it means abridging constitutional government.”

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