Role of the Attorney General
Captain of the Black Sox
One of the more curious and notable decisions rendered by the Maryland Court of Appeals in recent years is its short opinion in Ports v. Cowan, 426 Md.435 (2012) holding that Maryland, notwithstanding that it had an as yet unrepealed statute and public policy declaring marriage to be between a man and a woman,was nonetheless obliged to recognize same-sex marriages contracted in the handful of states where the judiciary has forced their recognition. This result was reached in the face of the same judge’s 4-3 opinion holding that Maryland public policy barred ‘gay marriage’ and without discussion of the federal Defense of Marriage Act, an enactment pursuant to the Full Faith and Credit Clause designed to absolve states from recognizing ‘gay marriages’ contracted elsewhere.
Judge Glenn Harrell, the able and usually restrained judge who wrote the opinion, can be partly absolved from blame for its pecularities. For no case was presented by Attorney General Douglas Gansler in support of the state’s statute and public policy, nor was the Defense of Marriage Act invoked in any pleadings.
Certainly there have been other cases when Attorneys General, state or federal, have professed to find themselves unable to conscientiously defend a statute. Two such famous cases involve two Marylanders who were Solicitors General of the United States. In United States v. Lovett, the solicitor general, Philip Perlman, arranged for defense of a challenged statute by counsel employed by the Congress that enacted it. In Peters v. Hobby, Solicitor General Simon Sobeloff stood aside, and arranged for Assistant Attorney General Warren Burger to argue the case for the government.
This course was not followed by Attorney General Gansler. Nor did the Court of Appeals appoint counsel to defend the statute, as it should have done. (This course was followed by the Supreme Court in the recent health care litigation, where lawyers were appointed to uphold the claim that suits were barred by the Tax Injunction Act). Instead, the Court of Appeals and Attorney General countenanced what amounted to a default judgment against important state legislation. The effect is to give the Attorney General a veto over legislation, which unlike gubernatorial vetoes cannot be over-ridden. This is not the constitutional design.