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Zoeller: State’s lawyer has duty to represent state in marriage suit

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By Greg Zoeller

Recent federal court actions that first struck down Indiana’s statute limiting marriage to the traditional definition, and then stayed that order pending appeal, have left many in our state in legal limbo. As the attorney who represents state government and defends its laws, I know this difficult case stirs many people’s deeply held beliefs that touch their lives in very personal ways. Not since my office had to represent the state in lawsuits arising from the State Fair disaster has a dispute been so seemingly impossible to address in a way that the public would accept as being fair to all concerned.

Not to have requested a stay in Indiana’s same-sex marriage cases would have been a dereliction of duty to my state client given that the United States Supreme Court granted an identical stay Jan. 6 after Utah’s traditional marriage law was invalidated. The Supreme Court stayed implementation of a lower court’s order until it could consider cases working their way through the federal appeals pipeline. Other federal courts around the nation have uniformly followed that precedent of issuing stay orders in same-sex marriage lawsuits to avoid chaos at local courthouses.

In 2013, the Supreme Court declined to decide the question of state-level marriage statutes because the state of California and its attorney general did not defend California’s law. Instead, the court threw the question back to states, prompting more litigation that could last yet another year. Failing to defend Indiana’s law from this challenge is not an option available to me or the attorney general’s office. Though I don’t make state laws, I take seriously my obligation to defend the statutes the Legislature passes from challenges plaintiffs’ lawyers file, both in trial court and on appeal. We can’t abandon our state clients or fail to defend the statute, duties that some editorials have not grasped.

I respect opinions of constituents who disagree. From reading news accounts and social media, it is clear some view me as being on the “wrong side of history” or even bigoted, homophobic or uncaring. None of that is accurate, but being an elected official means being subjected to criticism that sometimes can be intense, accurate or not. The women and men who serve in the attorney general’s office and who have a duty to represent our state in court – whether the state prevails – are simply fulfilling their obligations as public servants.

As officers of the court, all lawyers must try to maintain the public’s respect for judges and the courts’ decisions. Attorneys on both sides of these cases are fulfilling oaths to represent opposing positions in court to the best of our ability. Our adversarial system of justice ensures both sides of a controversy are fully aired and that a decision is not made until both sides have had the opportunity to advocate their viewpoints zealously.

Regardless of how the U.S. Supreme Court eventually decides, I ask everyone to respect the judges, the decisions they render and the attorneys advocating for all parties involved. While courts do their work, Hoosiers on all sides of this contentious issue ought to show civility and respect toward each other and toward the judicial process.•

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Greg Zoeller is attorney general of Indiana. The opinions expressed are those of the author.

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  1. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

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