Update: The video has apparently been restored.
Last September, in a speech to same-sex marriage activists in Chevy Chase, Maryland Attorney General Doug Gansler revealed a plan by Democrat governor Martin O'Malley to stack the state's highest court with judges who would, Gansler promised, rule against any referendum upholding traditional marriage.
On Thursday, Maryland's state senate narrowly passed a bill providing for same-sex marriage, sending it to Gov. O'Malley for passage. Supporters of traditional marriage are planning to gather enough signatures to put the issue to the voters in a November referendum--which, if successful, would likely face a challenge in the state courts.
In his September 7, 2011 speech, Atty. Gen. Gansler told a room full of elected officials and organizers from Equality Maryland that he was the governor's lawyer (4:37 in the video below), and that he was "about to divulge...a lawyer-client secret":
The right-wing, myopic folks will then try to have a referendum. And let's say they are able to do that, put it on the ballot... Let's say that the people vote, and they are, the machines don't work, and they vote it down, right? So then what happens? Then we go back to marriage is between a man and a woman again. And then what happens? Well, it goes to a court...Governor O'Malley has appointed three new members of the Court of Appeals...The new judges that Gov. O'Malley has appointed will ultimately decide that [traditional marriage is unconstitutional], as they have in almost every state that's visited this issue, including California...So we will win. (5:50 to 7:56)
There are three major problems with what Atty. Gen. Gansler promised--problems that should give pause to those who care about the rule of law, regardless of their views on same-sex marriage.
First, the attorney general is not the governor's lawyer in the traditional sense. He represents the state. (Disgraced former Illinois governor Rod Blagojevich learned--the hard way--that the attorney general does not always work for him.) If a referendum passed, and the state reverted to the existing law upholding traditional marriage, Gansler would arguably have a duty to represent the law against challenge.
Even the L.A. Times--which opposed Proposition 8 banning same-sex marriage--was incensed by then-California Attorney General Jerry Brown's refusal to defend state law in the state courts:
We don't like Proposition 8, and neither does California Atty. Gen. Jerry Brown or Gov. Arnold Schwarzenegger. But there's a difference between opinion journalists and the state's constitutional officers. California's top public lawyer and its chief executive have an obligation to defend the laws of the state whether they like them or not — and that should include the ban on same-sex marriage.
The principle at stake is so important that the L.A. Times reiterated it a year later:
Make no mistake, Proposition 8 should die in the courts. But it should fail on its merits — its discriminatory withholding of the right to marry — rather than because the officials who could have defended it wouldn't and no one else was allowed to step in.
Second, no lawyer should ever violate attorney-client privilege--even if the relationship they claim is a fictitious one. Whether Gansler is considered Gov. O'Malley's lawyer or not, he has violated the spirit--and perhaps the letter--of one of the most fundamental rules of the legal profession by revealing what he called a "lawyer-client secret."
Attorney-client privilege is the client's to waive, not the lawyer's. It is true that the privilege only covers communications between the client and the attorney, and not shared information in general, but a lawyer has an additional duty of confidentiality that applies to other client secrets as well. Atty. Gen. Gansler, who is supposed to set an example for other lawyers, should be subjected to discipline by the Maryland State Bar.
Third, Gansler has tainted the state's highest court with claims of political prejudice by suggesting he can guarantee the outcome of a decision on a same-sex marriage referendum because the governor secretly chose new judges based on their position on that issue alone--in advance of any litigation.
Maryland has a judicial selection process that is designed to be less politicized than the process for federal judges, because it relies on an independent judicial commission to create a pool of nominees based on their legal qualifications. Gansler's comments are an affront to the legal system he is supposed to represent--and, if true, suggest the possibility of undue political interference by the governor in the selection process.
Atty. Gen. Gansler owes the public an explanation--and so does Gov. O'Malley.