Guest Commentary: Justice system needs both sides represented in court


By Indiana Attorney General Greg Zoeller

Several same-sex couples recently filed lawsuits seeking to strike down Indiana’s traditional marriage definition law. As Indiana attorney general, I have been asked why my office is defending the statute in court when some AGs in other states are not defending their states’ traditional marriage laws from similar lawsuits. I explain that I took an oath to represent and defend Indiana’s state government and its existing statutes. I don’t make the laws – that’s the Legislature’s job – but I have a solemn obligation to defend those laws while there is a good-faith defense, and I cannot shirk my duty nor abdicate that responsibility to others.

Indiana Attorney General Greg Zoeller

Indiana Attorney General Greg Zoeller

Commentary button in JPG - no shadowThis is not personal advocacy on my part or by the lawyers who work in my office. Whenever the State of Indiana is sued, you – the taxpayers and citizens of the state – are really being sued collectively, and you are entitled to counsel. The correct course of action is for the attorney general to provide a good-faith defense – within the resources already available – until and unless the U.S. Supreme Court decides to the contrary. The justice system cannot work if one side is not represented by counsel or if the attorneys presume that they are judge and jury in their own cases and fail to zealously advocate for their clients.

Some have asked if in providing this defense I am on “the wrong side of history.” They note my counterpart, the Kentucky attorney general, recently announced he no longer would defend his state’s traditional marriage definition. But even he defended his state’s marriage law at the federal district court stage, and his decision not to continue representing his state’s position on appeal does not mean the law will go undefended. Instead, the Kentucky governor had to hire outside counsel to defend the statute in court. Was the Kentucky attorney general on the “wrong side of history” when he represented his client, but suddenly on the “right side of history” when outside lawyers were called in at significant cost to Kentucky taxpayers to do so?

Unlike Kentucky, Indiana does not need outside counsel to defend its own duly-enacted laws the Legislature passed. My office can do so readily within our existing budget, approved by the Legislature in advance, using our own salaried attorneys who do not charge billable hours and who would be paid the same whether these lawsuits were filed or not.

It’s worth noting what happened in California where the Proposition 8 constitutional amendment defined marriage in the traditional way. When that definition was challenged in federal court, California’s attorney general declined to mount any legal defense. When the U.S. Supreme Court heard the Proposition 8 case last year, it ruled that because the law was not defended by the State of California, the law’s private defenders lacked legal standing, and there could be no conclusive ruling on Proposition 8’s constitutionality. That left the question of state-level marriage definitions muddled and left our nation in suspense. How exactly is the lack of a legal defense on the “right side of history”?

My office will defend an Indiana statute, as we do every day in numerous cases, as long as a good-faith defense exists – and with the marriage definition law, it still does. Indiana courts previously have upheld Indiana’s marriage law, and the U.S. Supreme Court has previously permitted states to license marriage as between one man and one woman. While there are various challenges of multiple states’ laws now working their way through the federal appeals court pipeline, until and unless the U.S. Supreme Court rules otherwise, the State of Indiana has the right and obligation to enforce its longstanding statute and defend it from plaintiffs’ lawyers.

When plaintiffs challenge statutes, I never complain; federal courts exist to decide such questions. I hope that Hoosiers on all sides of this controversial issue will show civility and respect toward each other while the court does its work.

But when two opposing attorneys represent their clients to the best of their skill and ability, neither lawyer is by virtue of their courtroom role on the “wrong” side of history. Both serve as advocates before the court that makes the rulings that ultimately make the history. When we lawyers take an oath to represent our client, we can’t shirk our duty.

Greg Zoeller is attorney general of Indiana.




  1. ….

    An eloquently presented defense of the AG doing his duty.

    His argument presented here frames his personal brand and his personal position for durability once this abomination of a law is formally overturned as the Indiana AG is clearly is signaling it will.

    And good for the AG! In spite of – what will then be his past – role for advocacy of the unconstitutional law, he is clearly sympathetic that the law is simply a tool of the Westboro Baptist christian bigots pressuring him to unconstitutionally discriminate against same-sex couples.

    The bigots lost this Constitutional case last June in the Supreme Court of the United States.

    It is hilarious to watch these tools, many of them daily posters here at the CCO, whine, thrash, scratch and bite over losing.

    The AG of Indiana knows it is all downhill to mop up the changes in IN State law that will formally legalize same-sex marriage in the State.

    Kudos to him for being a professional, albeit one forced to do the dirty deeds of the bigots.

      • ….you know….respect for bigots is kind of like…an oxymoron?

        They do not go hand in hand. Bigots are ignorant. Sorry to share the truth so directly.

    • Yeah, yeah, Weinz, we get it. anyone who has a different point of view than you is a bigot and you’re everyone’s judge.


        You can’t deny US citizen voters their right to equal access to the law for interracial marriage, sames-sex marriage or inter-faith marriage. The Supreme Court, each time, put the bigots in their place stopping those abominable laws as unconstitutional.

        People used religious justification insisting bans on EVERY SINGLE ONE of those issues at the time. And every single time they were wolves in sheep’s clothing, NOT defending their religious rights.

        Indiana Enoch, you are insulting the Cross hiding behind it as a bigot.

        • Sure Weinz, either we all agree with your narrow views or we are a bigot on the order of Fred Phelps. Is there no room for reasonable middle ground in Wienz world?

          Wishing the slow death of people who hold a different opinion and judging my Christianity more akin to Phelp’s level of hate and bigotry than Jesus’s message.

          • …..

            I am all for middle ground – and compromise,

            BUT when that middle ground includes YOUR wish to violate a person’s constitutional guaranteed equal access to interracial marriage, same-sex marriage and inter-faith marriage,

            that is preposterous. You can’t do that I-E.

            It’s disgusting. And bigoted. And it is unconstitutional.

          • …..Last…Indiana-Enoch…. you’re comment rulings, judgements and majority national opinion (including the overwhelming majority of the younger, future generations of the U.S.) that same-sex couples have a constitutionally protected right to marriage

            ….is a “narrow view” ?

            Equally preposterous.

            BIGOTRY is NOT a “different point of view” I-E. The good news is that what you think about this issue has already been invalidated…as bigotry should be in a civil, US Constitutional society.

          • Weinz, I have time after time presented other views and ideas. With you it is either I agree with you or I am Fred Phelps. Having a different point of view is not bigotry in a reasonable mind, but you are bind to your own hate.

          • ….

            Indiana Enoch. Who cares if you agree w/ me? I don’t.

            It’s preposterous you think you’re “being reasonable.” You’re NOT being reasonable. It’s not ME saying that. The SCOTUS ruling on equal protection is in the past. Done. Downhill.

            You trying to invert the hate behind your bigotry is pathetic. Even the Supreme Court ruled in favor of equal protection for same-sex, interracial and inter-faith marriage.

            This is not going away. It’s coming to full legality. Only the bigotry on this will go away, or the bigots will.

          • Weinz, reasonable is offering solutions that might work for all involved. That’s what I do.

            Bigotry is clinging to one extreme or the other and attacking anyone who disagrees with you. That’s what you do.

            Equal protection would be allowing access for all who qualify. Same sex marriage denies others that access. You’re way has now morphed into not only a right to marriage but a right to a wedding.

          • Yours is a wholly ridiculous statement. It will never “be reasonable” to deny a citizen voter their constitutional equal protection rights.


            That’s not my opinion. And you’re not disagreeing with me. It is a SCOTUS ruling. Denying those rights is not reasonable under any circumstances.

            Indiana Enoch….That you still cling that it IS reasonable…only makes sense to you because you’re a bigot.

            (Bigot: a person who hates or refuses to accept the members of a particular group…in this case, citizen voters guaranteed equal protection under the US Constitution.)

      • I accept everyone Wienz, but I disagree that same sex marriage is the best solution. You’re the one who refuse to accept other groups like Christians or the tea party.

        • I-E,

          You’re distracting. The question isn’t whether same-sex marriage is the best solution. This is a Constitutional issue. The question is…is denying same-sex couples marriage rights violating their guarantee of equal protection under the law.

          SCOTUS ruled. The ruling was yes, it is unconstitutional to deny same-sex couples marriage rights (just as SCOTUS ruled it was unconstitutional for States to deny interracial and inter-faith marriage).

          (And I-E, since you refuse to accept that….directly contradicting your statement above….it is clear you DO NOT accept that same-sex couples are guaranteed marriage equality….

          In your disfavor, SCOTUS ruled on this last June.

          • SCOTUS has not ruled that. You are extrapolating their ruling into something else yet to be decided.

            I can accept but still disagree with a court ruling. The width of your my way or Phelp’s ideology does not allow you to comprehend that. I see no difference in you yelling bigot at Christians and the tea party and wishing their slow death than Phelp’s yelling fag and burn in hell. You’re just the other extreme.

  2. If one wholeheartedly refuses to recognize, nor even give a passing examination of the ideas of another group without hateful vitriol, doesn’t that also make a bigot of the one leveling the accusation of bigotry? How quaint! How classy! How steeped in ignorance!

    • ….you are making the mistake of bigoted ignorance VS advocating the unconstitutional violation of a citizen voter’s civil rights.

      The two are NOT the same…no matter how many times you say it.

      I am not advocating violating your Constitutional rights. Enjoy your free speech. And I will enjoy pointing out you’re advocating bigotry.

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