All of Indiana AG’s “rights, powers, and duties” are created by statute. I.C. § 4-6-1-6. Office of AG was created by statutes, in 1889, construed as giving the AG sole responsibility for the legal representation of the State. State ex rel Sendak v Marion Sup. Ct, 268 Ind. 3, 8 (Ind. 1978).
The AG shall consult with and advise Indiana prosecuting attorneys, and when, in the AG's judgment, the interest of the public requires it, attend, and assist in, the trial of any party accused of an offense, and represent the state. I.C. § 4-6-1-6.
On another note, Indiana has a strong history of freedom of “religious opinions and rights of conscience.” Ind.Const., Art. I, § 3. Also: “No money shall be drawn from the treasury, for the benefit of any religious or theological institution.” Id., § 6.
Indiana’s new AG, Todd Rokita, is not shy about over-reach of authority. He blogs (as is his right under both Federal and Indiana constitutions) and takes actions (not his right and limited by statute) since assuming office. Problematic is his blogging as Indiana AG.
He noted “our celebrations of Easter and Passover” and that Hoosiers should “appreciate the exceptional nature of our rich heritage of religious liberty.” Well, it’s religious liberty if you are a Jew or (the right kind of) Christian.
Then we get to an Op-Ed he wrote in which he wrote that we could lose “our” religious liberty. Fortunately Todd has stepped up” by defending “the right of a Catholic institution — Cathedral High School ... to operate according to the doctrines of its faith.”
His “action” was to file an amicus brief in a case in which a gay teacher was fired by a parochial school. (Townhall, 3/31/21.) He also supports “allowing contractors to be exempt from certain non-discrimination rules” if they show the “purpose is substantially religious.” Id.
We have come a long way and recognized people’s rights. Rokita seeks to retard progress by allowing discrimination against equality of marriage and racial discrimination if garbed in the proper doctrinal garb. (“sons of Ham” is very long-established.)
Rokita bounced from the office of Indiana Secretary of State to the U.S. House to a failed try at the U.S. Senate and found a resting place as AG. He seems to believe he can make policy in his job, but he cannot.
In defending a lawsuit the AG “is not dictating policy or directing the State” but merely defends the State. The “legislature has chosen to vest the responsibility for the legal representation of the State” in the AG. State ex rel Sendak, 268 Ind. at 9.
Of course Rokita operates with an intellectual blind spot that causes him to preclude one-half of the human race as his peers. He graduated from Wabash College, an all-male, post-secondary facility in Crawfordsville, Indiana. That explains, but only in part, his odd views.
The Attorney General of Indiana was designed to be an administrative office, not a policy-making one. For example, I don't think it's the job of AG to pick and choose what Indiana laws the AG defends in court. Former AG Zoeller took that position, which I pointed out gave him an absolute veto over Indiana law. Plus, there is a provision in Indiana law that allows the AG to defer defense of the law to someone outside the AG's office if the AG doesn't feel comfortable defending the law. Zoeller refused to use that provision.
I know that in some states, people applaud when a state wide official refuses to defend a law. I think that's a mighty slippery slope.
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