INDIANAPOLIS — Supporters of same-sex marriage hailed Virginia Attorney General Mark Herring when he announced that he wouldn’t defend his state’s prohibition against gay marriage.
Indiana Attorney General Greg Zoeller calls Herring’s decision a “dereliction of duty.”
Zoeller prefers another model — that of North Carolina Attorney General Roy Cooper. Like Herring, Cooper is a Democrat and personally supports same-sex unions. But when North Carolina’s ban was challenged in court last fall, Cooper said his job as the state’s chief lawyer trumped his personal views. He vowed to vigorously defend the law.
“That’s the job,” Zoeller told the Indianapolis chapter of The Federalist Society this week. “… This has nothing to do with partisanship or your personal views.”
It’s not hard to envision Zoeller, a devout Catholic with traditional views when it comes to marriage, embracing his job to defend Indiana’s current law against same-sex marriage if — more likely when — it’s challenged in court.
But his job also requires him to veer from his Catholic tenets at times. He described a deep moral conviction against the death penalty. Yet it doesn’t stop him from instructing his staff to defend challenges to Indiana’s death penalty law.
As he told a sympathetic audience of conservatives and libertarians who share his disdain of federal control over states’ regulatory and civil rights: “It’s not my personal views that I am defending. It’s the obligation to defend the authority of our state and the decision of the men and women you all elect have made.”
The two-term Republican wins friends with talk like that. He picks up enemies, though, when he goes beyond defender of state law and starts playing offense.
Zoeller is an ardent advocate of the position that state attorneys general are a last line of defense against federal overreach. It’s an area where he has stepped into some of the hottest legal and political debates being waged across the nation.
Zoeller has played a key role in state-driven lawsuits challenging the Affordable Care Act. He’s joined a multi-state challenge to the U.S. Environmental Protection Agency’s authority to regulate greenhouse gases, and another that challenges the EPA’s authority in the cleanup of the Chesapeake Bay.
Last year Zoeller wrote a “friend of the court” brief on behalf of a group of state attorneys general that urged the U.S. Supreme Court to allow prayer at government meetings. (The Indiana General Assembly starts its daily sessions with a prayer.)
He was the primary author of briefs submitted by states last year to the U.S. Supreme Court that supported California’s gay marriage ban as well as the federal law, later struck down, defining marriage as the union between a man and a woman. Last month, he led 11 state attorneys general who filed a brief in a federal appeals court arguing that allowing gay and lesbian couples to marry would lead to the “tragic deconstruction” of marriage.
Zoeller’s critics say these are political challenges disguised as legal ones.
The accusation makes him bristle.
To the discomfort of some members of the Federalist Society, he praised the EPA for implementing the Clean Water Act of 1972, which forced states to dramatically curb pollution. The New Albany native said it made his beloved Ohio River fishable and swimmable again.
Zoeller emphasized his independence with another story, this one about meeting then-presidential Republican candidate Mitt Romney at a political fundraiser two years ago.
Romney, on hearing of Zoeller’s reputation for suing the Democratic administration, joked that he wouldn’t be so busy if Romney were elected.
“Oh no,” Zoeller responded. “I’ll sue you, too. You’re federal. I’m state. This has nothing to do with politics.”
Columns by Maureen Hayden, Statehouse bureau chief for CNHI’s Indiana newspapers, appear Mondays in The Herald Bulletin. She can be reached at Maureen.firstname.lastname@example.org.