A Thought on the Prop 8 Case and Ethical Obligations

In re: this ("The courts shouldn’t be foreclosed from hearing appeals just because the current government declines to defend a law") and this ("With today's decision, the Supreme Court is basically gutting the people's right to pass initiatives that elected officials don't like and then to defend them all the way to the highest court in the land"):

In college they told us about the dispute resolution triad--every civil or criminal case has two competing parties and someone tasked with resolving the conflict. On two ends, this is not a problem at all: the arbitrator will be convinced of the fairness of their ruling, and the winning side will be happy to have won. The problem of administering law is convincing the party that loses to accept the result. It does this in equal parts by claiming neutrality--considering the legal merits of each argument and not the people arguing--and the most vigorous possible defense of one's position. The lawyers are not expected to be neutral: their job is to produce the best possible result for their side. The system requires people to behave impersonally: there are roles, and the roles must be filled. A criminal defense lawyer who tanks a case because they believe their client to be guilty has committed an ethical violation, even if the person is in fact guilty and the punishment they receive is wholly deserved.

The problem with the Prop 8 case is that the state failed its ethical duty to its citizens. The court was right to hold that the petitioners lacked standing--it's hard to see how it could be granted here and not to many, many other petitioners who had less of a case. I am not particularly interested in the merits of Prop 8 itself, nor in the referendum system that produced the law. The problem is that the state did not fulfill its prescribed role: to defend the laws independently of what it thinks of them. The state officials represent the people, who live in a state with referendum laws: if a referendum passes it's a law no less than one that goes through the state legislature. It's not the place of the state to decide which laws it wants to defend in court or anywhere else: if the rule of law holds up as an idea, it needs to apply equally and all the time. Just like the ethics of the lawyers actions are independent of the guilt of their client, the actions of the state in judicially defending the law should be the same regardless of the wisdom of the law (after all, the court can always strike the law down on its merits).

The most interesting implication of this would be a countering view that contends that state officials can and do make discretionary choices all the time about when to apply, enforce, and prosecute under certain laws (and much Supreme Court hay has been made from these: Griswold and Lawrence come to mind). But this seems to prove what a work-to-rule strike proves: that the collection of laws we have is too vast and complex to be enforced as written. Unresolved is the question of why this state of affairs should be considered desirable.

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