Why Roy Cooper should follow his conscience and the law | Citizen | Indy Week
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Why Roy Cooper should follow his conscience and the law 

click to enlarge Pro-marriage equality activists are looking to Attorney General Roy Cooper to join their side. At right is the Rev. Nathan Fair of Trinity United Church of Christ, Concord.

Photo by Bob Geary

Pro-marriage equality activists are looking to Attorney General Roy Cooper to join their side. At right is the Rev. Nathan Fair of Trinity United Church of Christ, Concord.

Roy Cooper is in a fix. He's the state attorney general, so he represents the General Assembly and the McCrory Administration—come hell or coal ash in the water. In other words, he's a Democrat defending the horrid Republican record. Worse, he's an all-but-official candidate for governor, meaning he's running against the very record he's upholding.

Take the issue of same-sex marriage. Out of court, Cooper is for legalizing it, a position most Democrats cheer. In court, though, he's fighting to preserve the state's ban against it, aligning his office with the Republicans who saddled us with Amendment One in 2012.

Last week, a pro-LGBT group, led by a dozen Christian ministers, delivered 30,000 signatures on a petition to the Attorney General's office. They asked that Cooper stop defending against lawsuits like their own (General Synod of the United Church of Christ v. Cooper) that seek to topple the state's anti-gay Defense of Marriage Act as well as Amendment One, which added a same-sex marriage ban to the N.C. Constitution.

"North Carolina's marriage laws criminalizing pastors for blessing same-sex relationships are blatantly unconstitutional," the petitions said. "As an official sworn to uphold the Constitution of the United States, including the First Amendment's guarantee of religious freedom, you must decline to defend these laws in federal court."

"We're calling on Attorney General Cooper to act out of conscience and in concert with the law," said the Rev. Nancy Petty, pastor of Raleigh's Pullen Memorial Baptist Church.

There's ample precedent for Cooper to do what they asked. The U.S. Supreme Court decision in United States v. Windsor a year ago struck down the federal Defense of Marriage Act as unconstitutional. Based on that ruling, 13 judges have found that their states' anti-marriage equality laws were also unconstitutional. That's 13 out of 13—no judge decided the other way.

Moreover, as some of these cases move to federal appellate courts, seven state attorneys general have done what the petitioners asked Cooper to do: They've withdrawn or switched sides.

One, Virginia's Mark Herring, is also a Democrat planning to run for governor. "As attorney general, I cannot and will not defend laws that violate Virginians' rights," Herring said. "[My office] will be siding with the plaintiffs [and] every other Virginia couple whose right to marry is being denied."

Cooper, though, was unmoved. "North Carolina should change its laws to allow marriage equality, and I believe basic fairness eventually will prevail," he said. "However, when legal arguments exist to defend a law, it is the duty of the Office of the Attorney General under North Carolina law to make those arguments in court."

Really? "Legal arguments" is the standard? Not valid arguments?

Cooper's position that he must defend any law for which a "legal argument" exists has him in court—or lawyers who report to him are—backing constitutionally dubious restrictions on abortion rights, public vouchers for private schools, egregious (in my opinion) racial gerrymandering of election districts and the Republicans' voter-suppression legislation, also known as Voter ID.

In an especially embarrassing case, Cooper's office defended the 2013 law that seized the city of Asheville's water utility—without compensation—and handed it to a newly created regional authority. Asheville: Democratic. Regional authority: Republican.

The law was a patent violation of the state constitution's limits on local bills (Article 2, Section 24).

Two weeks ago, Wake County Superior Court Judge Howard Manning whacked the law, returning the utility to Asheville in a ruling that said, in effect, that maybe the state could make a "legal argument," but it wasn't one worth hearing.

And that's not to mention all the agency actions Cooper's staff defends, notably the Department of Environment and Natural Resources' position that Duke Energy not be hurried when it comes to coal ash. In March, when Wake Superior Court Judge Paul Ridgeway ordered Duke to take "immediate action," he rejected a DENR settlement defended by, yes, Cooper's deputies.

Cooper's in a tough spot. Under the state constitution, he's elected for a four-year term (he's in his fourth term) and so could be deemed to have some independence. In reality, however, having an elected attorney general is a way of splintering the executive branch — in some states, the governor appoints the attorney general — and it may make the AG more subservient to the legislative branch, not less.

What are the AG's duties? They're whatever is "prescribed by law," the constitution says.

What's prescribed is that the AG's office function like the state's law firm, defending its laws and standing with its agencies like any lawyer would for his client.

Still, Cooper is sworn to uphold the U.S. Constitution above all else and the N.C. Constitution when it conflicts with state law.

Personally, I think the Republican gerrymandering, voter suppression, vouchers and required ultrasounds before an abortion are clear constitutional violations, as was the Asheville utility seizure—and I haven't exhausted the list.

Cooper could declare war—legal war—on these GOP attempts to trample citizens' rights, after which the General Assembly would no doubt strip his office of all power except from a dangling light bulb. He'd still be AG, though—and an independent one.

Short of that, Cooper could do what Herring did in Virginia, declaring that while "legal arguments" can be concocted for the rest of the Republican mess, there's no honorable way to defend Amendment One.

And when Amendment One falls—as it will—Cooper can take another courageous position.

As an alternative, Cooper can continue to say that he's the state's lawyer and his clients make all the decisions, he just parrots them.

But that's a strange position for a candidate for governor to be in.

This article appeared in print with the headline "A Puppet Attorney General?."

  • An all-but-official candidate for governor running against the very record he's upholding

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