Left, Greg Hecht, Democratic candidate for attorney general, calls it “morally, legally and fiscally irresponsible” to defend a ban on same-sex marriage that will almost certainly be overturned. Right, Sam Olens said through a spokeswoman that not defending law sets a dangerous precedent. ()
Voters have a clear choice on the issue of same-sex marriage in the race for attorney general. Republican Sam Olens, the incumbent, is leading the state’s defense of its constitutional definition of marriage as only between a man and a woman. Democrat Greg Hecht, the challenger, has vowed to withdraw the state’s position if he wins.
Aside from being the rare political issue in which candidates’ stances aren’t blurred, the same-sex marriage issue opens up a broader issue of how an attorney general decides where to focus his power.
Tanya Washington, a Georgia State University law professor, said the successful challenges of gay marriage bans in other states, as well as the U.S. Supreme Court’s takedown of the federal Defense of Marriage Act, indicate that attorneys general have some discretion in deciding whether to defend same-sex marriage bans.
Washington noted that in Virginia, attorney general Mark Herring, a Democrat, alerted the federal court shortly after he took office that he would not defend the state’s same-sex marriage ban. His Republican predecessor, Ken Cuccinelli II, was opposed to same-sex marriage.
“The obligation to enforce a law doesn’t have anything to do with the obligation to defend a law,” she said. “Something I thought of when I read the Windsor case, the U.S. high court ruling striking down DOMA, is whether voters now are going to start asking candidates on the stump, ‘Will you defend these laws? When we pass a law are you going to defend it? How will you decide?’”
Olens has not publicly commented on his personal beliefs regarding same-sex marriage, but he said he has a “constitutional obligation to defend Georgia law.”
Hecht has stated that he would not defend the 2004 amendment to the Georgia Constitution. “Georgia deserves an attorney general who is committed to allowing all citizens to exercise their constitutional rights to pursue happiness and share in the freedom to marry,” Hecht said in a July 24 statement that also framed the debate as a fiscal matter.
“Georgia’s top law enforcement official has an obligation to protect freedom and oppose discrimination—but also to be a careful steward of Georgia’s precious tax dollars,” Hecht said. “It would be morally, legally and fiscally irresponsible to press a case that, based on rulings across the country, would almost certainly be overturned, at a cost to Georgia’s taxpayers when our resources should be invested in our schools and public safety.”
In April, a gay rights organization, Lambda Legal, brought a suit on behalf of seven individuals challenging Georgia’s ban on same-sex marriage. Olens is defending Deborah Aderhold, the state registrar and director of vital records. The suit also names Fulton County Probate Judge ­Pinkie Toomer and Gwinnett County Probate Clerk Brook Davidson as defendants.
On Aug. 7, U.S. District Judge William Duffey issued an order granting a stay in the case while he considers the state’s motion to dismiss.
Olens, who was a civil litigator and chairman of the Cobb County Commission before being elected AG in 2010, has publicly criticized U.S. Attorney General Eric Holder’s decision last year not to defend DOMA.
“When U.S. Attorney General Holder says we need to see if the law is good and apply a strict scrutiny standard, that’s not good,” Olens said in a March symposium hosted by the State Bar of Georgia.
Olens, who was joined in the panel discussion by the attorneys general of North Carolina and Colorado, added that attorneys general “are not to take the place of the judicial branch.”
North Carolina Attorney General Roy Cooper II, a Democrat, told the symposium audience that he personally supports same-sex marriage but would defend his state’s two-year-old ban.
“We have a supermajority of Republican legislators and a Republican governor,” Cooper said. “They have passed a lot of laws I don’t agree with, but now that North Carolina has been sued, it’s my duty to defend the state.”
But last month, Cooper held a press conference at his office to announce that he was abandoning his defense of North Carolina’s law, citing the Virginia case.
According to The News & Observer in Raleigh, N.C., Cooper said, “Simply put, it is time to stop making arguments we will lose and instead move forward, knowing that the ultimate resolution will likely come from the U.S. Supreme Court.”
On Tuesday, Olens’ spokeswoman reiterated his position that he is constitutionally obligated to defend Georgia laws.
“Attorney General Olens took an oath to support the constitution of Georgia, and he will honor that oath,” Lauren Kane said. “The refusal to defend a law—without binding precedent making clear that it is unconstitutional—sets a dangerous precedent and undermines the rule of law. In fact, U.S. Supreme Court Justice Anthony Kennedy wrote in the majority opinion of U.S. v. Windsor that it ‘poses grave challenges to the separation of powers’ for the executive branch to refuse to defend the constitutionality of a legislative act when the court had not yet decided the question.”
Hecht, a former prosecutor, county attorney and state lawmaker, said that were he attorney general he would look for “a clear body of case law and critical analysis of state and federal constitutions before making the extremely rare decision not to defend a law.”
The state’s same-sex marriage ban is a sure loser, Hecht added. His assessment is “based on 25 courts saying the ban is unconstitutional and based on Mr. Olens making the exact same arguments that were struck down in all the other courts.”
Hecht said he also believes the ban violates the state constitution.
“Georgia’s Constitution has its own equal protection clause; privileges, rights and immunities clause; and due process clause,” he said. “Olens ignores those. It’s amazing to me that he is basically, in our opinion, making a decision based on polls and not as a lawyer.”