An excerpt from “Justice Denied”

The complete report is available here.

Part 20: The Voters Have Lacked Representation in Court

“Imagine for a moment that someone sues you,” began John Stonestreet in his BreakPoint radio commentary for February 25, 2014. BreakPoint is a ministry of Prison Fellowship and the Colson Center for Biblical Worldview. Stonestreet continued:

You arrive in court, expecting your lawyer to defend your interests, only to hear him say that he disagrees with you and will now assist your adversary.

There would be pandemonium. Your attorney would be relieved of his duties, and in all likelihood, face professional censure.

Yet, something akin to this happened to the people of Virginia last week. It’s part of a trend that should trouble people regardless of their position on certain “hot-button” issues.

On February 13, a federal district court judge in Norfolk struck down Virginia’s ban on same-sex marriage. Judge Arrenda Wright Allen ruled that the voter-approved amendment to the Virginia constitution violated the 14th Amendment’s Equal Protection Clause. Allen wrote that “Government interests in perpetuating traditions, shielding state matters from federal interference, and favoring one model of parenting over others must yield to this country’s cherished protections that ensure the exercise of the private choices of the individual citizen regarding love and family.”


Sadly, there’s nothing new in this easy dismissal of millennia of tradition. What is new is the role played by Virginia’s new Attorney General, Mark Herring. Instead of defending the law, which is what as the Commonwealth’s lawyer you expect him to do, he joined the plaintiffs in seeking to overturn it.

Herring, who was elected by a tiny margin of 907 votes, also believes the ban violates the 14th Amendment. His solicitor general, Stuart Raphael, compared the ban on same-sex marriage to Virginia’s infamous ban on interracial marriage back in the 1960s.

Herring isn’t the first state attorney general to decline to defend the voters’ wishes on this issue: attorneys general in Pennsylvania, Illinois, Nevada, and California have also taken what USA Today called “an unusually supportive role” in the movement to overturn democratically-enacted laws.

While declining to defend a state law is not unheard of, it is unusual. As Ed Whelan of the Ethics and Public Policy Center put it, this trend represents “a complete collapse of the line between law and politics . . . [T]he defense of these laws is not being litigated the way it ought to be, and defenders of marriage laws will have ample reason to believe the process is rigged against them.”

“Rigged” is not too strong a word. Once a lawyer agrees to represent a client, his ethical duty is to defend the client’s interests to the best of his or her abilities, even if he disagrees with the client.

This should go double or triple for state attorneys general. If you aren’t willing to defend the democratically-enacted laws of your state, you really shouldn’t run for the job.

When criminal convictions are overturned on account of inadequate legal representation, people agree that an injustice has been done. When the will of the people and millennia of tradition are overturned for much the same reason, it’s suddenly hailed as a victory for the “principles of equality upon which this nation was founded.”

This last phrase quoted by John Stonestreet was uttered by Ted Olson, lead co-counsel for the plaintiffs in the Virginia case and one of the lawyers who argued before the Supreme Court that California’s Proposition 8 should be overturned. Olson said, “Through its decision today, the court has upheld the principles of equality upon which this nation was founded.”

This is the convoluted logic that is apparently prevailing in the courts of America today. In a country where no individual is denied the right to legal counsel and the right to a fair trial, and in a country where free legal assistance for undocumented immigrants is not unheard of, shouldn’t voters be among the first have representation in court?

Even Judge Vaughn Walker saw the blatant unfairness of such a scenario. Bob Egelko interviewed Judge Walker as the Prop 8 case was winding its way to the Supreme Court. First summarizing and then quoting Walker, Egelko wrote, “If Prop. 8 is invalidated because no one has the standing to defend it, he [Walker] said, it will leave ‘a sense of the issue not having been resolved.’”

While the Supreme Court didn’t officially invalidate Prop 8 in its ruling on June 26, 2013, it did rule that the people (the voters) did not have standing to appeal in federal court. In effect, Prop 8 and many other state laws protecting marriage, including constitutional amendments, have been invalidated because of this ruling, along with the Supreme Court’s ruling that the federal Defense of Marriage Act (DOMA) was unconstitutional.

Paving the way for this onslaught against the will of the people in state after state, the nation’s top lawyer, Attorney General Eric Holder, advised state attorneys general to refuse to defend state laws protecting traditional marriage. According to a CNSNews article posted February 25, 2014 (the date for the BreakPoint article we just cited),

State attorneys-general who refuse to defend state laws banning same-sex marriage won’t face any objection from the nation’s top law enforcement official. In fact, Attorney General Eric Holder will applaud them.

According to Holder, “decisions at any level not to defend individual laws must be exceedingly rare. They must be reserved only for exceptional—truly exceptional—circumstances.’

Then Holder went on to encourage the very scenario he said should be rare!

He said that state laws banning same-sex marriage rise to that “truly exceptional” standard—because they do not “advance the values that once led our forebears to declare unequivocally that all are created equal and entitled to equal opportunity.”

Never mind that our forebears would never have approved of so called “same-sex marriage.”

Holder told a gathering of state attorneys-general at the Justice Department that they are sworn, not just to win cases, “but to see that justice is done” and to “seize the opportunities that are before us.”

Activist judges are certainly bad enough, but now we also have hyper-activist lawyers—attorneys who, as John Stonestreet pointed out, have a specific responsibility to defend clients they are abandoning.

The legal system exists, he [Holder] said, not just to settle disputes and punish wrong-doers, “but to answer the really fundamental questions about fairness and about equality that have always determined who we are and who we aspire to be, both as a nation and as a people.”

In other words, the legal system exists not to fairly interpret the law, but to promote an agenda espoused by one side of a legal dispute, and to abandon the concerns of those on the other side. And significantly, Holder’s rhetoric sounds eerily similar to that of Ted Olson when Olson said the Virginia decision “upheld the principles of equality upon which this nation was founded.” You can almost hear patriotic music in the background!

Holder explained that those “really fundamental questions’ prompted him and President Obama to decide in early 2011 that Justice Department attorneys would no longer defend the constitutionality of the federal Defense of Marriage Act.

Holder said he and Obama were “motivated by the strong belief that all measures that distinguish among people based on their sexual orientation must be subjected to a heightened standard of scrutiny…and therefore this measure (DOMA) was unconstitutional discrimination.”

Doesn’t a judge rather than a lawyer have the job of interpreting a law and determining it’s constitutionality? (Actually, it’s a modern myth that even the Supreme Court has absolute authority to interpret the Constitution, but certainly a lawyer doesn’t!) Here we have the very lawyer who should be championing the voters’ cause declaring that laws passed by due process are unconstitutional!

Last summer, the U.S. Supreme Court “marked a critical step forward” when it stuck down the federal government’s ban on recognizing same-sex marriages performed in states where such marriages are allowed, Holder said.

“More recently, and partly in response to the Windsor decision, a number of state attorneys-general—including those in Pennsylvania, Nevada, Virginia and just last week in Oregon, have reached similar determinations after applying heightened scrutiny to laws in their states concerning same-sex marriage.

“Now, any decisions at any level not to defend individual laws must be exceedingly rare. They must be reserved only for exceptional—truly exceptional—circumstances.  And they must never stem merely from policy or political disagreements, hinging instead only on firm constitutional grounds.

Pretending to be objective, Holder instead demonstrated extreme bias and favoritism—not for the majorities who have voted to uphold marriage, but for the minority whose position was defeated time and time again at the ballot box.

“But in general, I believe we must be suspicious of legal classifications based solely on sexual orientation. And we must endeavor in all of our efforts to uphold and advance the values that once led our forebears to declare unequivocally that all are created equal and entitled to equal opportunity.”

So we see that in his statements, Attorney General Eric Holder turned the system of values espoused by our forebears on its head, using it to promote a policy and a “right” our ancestors would have considered abhorrent.

Finally, consider this. Ironically, the 14th Amendment to the U.S. Constitution is often cited as a rationale to promote same-sex marriage. Yet this is the very amendment being violated by lawyers and judges seeking to promote the gay-rights agenda. Consider carefully what Section 1 of the 14th Amendment says:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

All these elements underscore the fact that the people who have played by the rules and who have sought to protect marriage according to due process have been violated. They have not even gotten fair representation in court! original link: (quoted extensively) (quoted in its entirety)


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Copyright 2015 by B. Nathaniel Sullivan. All rights reserved.