Then Attorney General Jerry Brown caused quite a chasm when he declined to defend in court the majority voter-approved Proposition 8 that amended the California constitution to explicitly define marriage as existing between a man and woman. Gay marriage supporters hailed what they saw as Brown’s moral decency, while Prop 8 supporters cried political foul—how was it that a publicly elected official could absent himself from defending the “will of the people” by popular vote? Now, the former Attorney General candidate and current state Senator Tom Harkin (R-CA’s 35th District) is introducing Senate Bill 5, which would require the state attorney general to defend all voter-approved laws from legal challenges or authorize their sponsors to step in. If the political tables were turned—on gay marriage, healthcare or any number on equally-contentious issues—would those who cried foul in the prop 8 debate still support the AG to take that stand? What does the Attorney General’s office obligate its occupant to defend and should personal discretion enter into the equation?
Sen. Tom Harman, R-CA’s 35th District (Huntington Beach, Irvine and Costa Mesa). He’s the author of SB5, which would require the state attorney general to defend all voter-approved laws from legal challenges
Vikram Amar, associate dean for academic affairs & professor of law at the UC Davis School of Law