This is the Cato Daily Podcast for Friday, February 28, 2014.

I'm Caleb Brown. Some state attorneys general have opted not to defend in court laws that prohibit same-sex marriage after the recent

Windsor Supreme Court decision, and that may appear to put two important values into conflict.

Walter Olson, a senior fellow at the Cato Institute, sorts out the issue.

The Virginia AG recently said he would not argue in favor of a law banning same-sex marriage in Virginia because he thought it was unconstitutional.

He thought it violated the federal constitution.

Yeah.

But in making that argument, he's in some sense violating the terms of his job, arguably,

which is to defend the law.

We've got two very powerful principles colliding with each other here and one of them is the role that we expect of lawyers and the role that the legal profession expects of its

members which is every cause should have an advocate every client

should have a lawyer willing to defend the client's interests and that's the job description on the face

of it of the attorney general of the state of Virginia. So that's the one principle.

The other side is every public official including the Virginia Attorney General

takes an oath of office not just an oath to uphold the Virginia

Constitution but an oath to defend the US Constitution and if you push a legal position that is trying to preserve

an unconstitutional practice you might have violated your oath to uphold the US Constitution.

Now this is separate and distinct from the idea of enforcement.

Yes, it is different and you might think on the surface that if a state we're going to view

a law is unconstitutional, it would have to stop enforcing it as well as send its lawyer to argue

or not argue that position in court, but they separate the two all the time,

partly for practical reasons.

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