I don't really get why so many people were calling the DOJ's brief in the Smelt suit to overturn DOMA paradoxical or incoherent two weeks ago - I thought that we had already been through the explanation before that, just because Obama may be opposed to a certain policy, the Justice Department has a general obligation to defend existing law (with a few, narrow exceptions). Apparantly Justice felt the need to make that clear in their last brief, but just because the administration is opposed to a law doesn't mean that the government's lawyers are off the hook when it comes to doing their job. But even some people who should know better were claiming that there was something bizarre about opposing the policy but defending the law.
Here's a good example as to why attorneys general should defend standing law even if they disagree with it:
Attorney General J.B. Van Hollen said Friday he would not defend the state in a lawsuit over the state's new domestic partner law.[...]
Van Hollen, a Republican who has not ruled out a run for governor in 2010, said his decision was based not on a policy dispute but on his responsibility to uphold the state's constitution.
Defending the law would require him to ignore the voters' approval of the marriage amendment in 2006 because he believes the budget provision recognizes a legal status that is substantially similar to the legal status of marriage, Van Hollen said in a statement.
The governor disagrees with his position and now has to hire an attorney to defend the law. Is this really the best system?
Of course, I don't know enough about Wisconsin's legal system to know if Van Hollen's move is legal or not, or appropriate or not with regard to their legal traditions, but, from a policy stand-point, it seems rather silly to let a single official decide whether a law is constitutional or not. It results in situations like this one, where career aspirations get in the way of effectively carrying out the law.
He doesn't think it's constitutional, but, frankly, that should be for a court to decide if it isn't a cut-and-dry case. There is a legitimate debate on Wisconsin's domestic partnership registry, since the law prohibits institutions "similar" to marriage while the domestic partnership registry only gives same-sex couples access to about a quarter of the rights of marriage.
Considering how politicized the law itself has become over the past decade, what with prosecutors being fired for not doing the Bush administration's dirty work and the far-right's complaints about "liberal activist judges" that were always just about getting their own conservative activist judges on the bench, I don't think many people are going to care that the attorney general of a state has up and decided that it's best for his career not to do his job. I heard far too many people say that Justice shouldn't defend DOMA because it's "discriminatory," "abhorrent," and "bad policy" to think that Americans are all that attached to the aspiration of an independent and process-driven legal system.
But the more common result of breaking these barriers will be conservative ideologues and political hacks pushing their agendas over the rule of law. They simply care less about the rules than the left does.