Today’s arguments deal with Prop. 8, which Jerry Brown refused
to defend in court. Tomorrow’s arguments deal with DOMA, which Barack
Obama and Eric Holder refused to defend in court. Indeed, Obama is
sending in his Solicitor General to argue for DOMA to be struck down —
and his argument, carried to its logical conclusion, would lead to gay
marriage being legalized in all 50 states.
The immediate issue is whether lawyers not representing the State of
California (for Prop. 8) or the United States (for DOMA) have standing
to defend legislation when the executive has decided they will not. If
the Supreme Court ultimately holds that the groups now defending DOMA or
Prop. 8 have no standing in court to defend the measures, it would
essentially confer a backdoor executive veto on any legislation that an
executive doesn’t like. You disagree with a law? Don’t bother engaging
in the political process and trying to get it overturned. Just wait
until your guy sits in the governor’s office or the Oval Office, and
have someone bring a lawsuit.
Your guy will refuse to defend the
legislation, and BOOM! you’re done. The lawsuit wins, the legislation
gets invalidated, and there’s nobody around with any right to complain
about it. Easy as pie!
As long as executives enforce only the laws as written (only subtracting, not adding), a little nullification would be a good thing. Indeed, a vast majority of laws ban actions that aren't wrong -- and as far as I'm concerned, everyone's first duty is to be just, not to follow whatever rules the politicians make.