Most office-holders outside of the Republican presidential campaign — and practically all public figures in California — agree that Kentucky county clerk Kim Davis violated her oath of office by refusing to issue marriage licenses to same-sex couples because of her personal religious views. After five days in jail, Davis seems to have reached a shaky truce with a federal judge and members of her staff, who are ignoring her disapproval and issuing licenses to all comers. But there seems to be a consensus among serious commentators and public officials — again, excluding one party’s presidential contestants — that an elected office-holder who can’t or won’t carry out her sworn duty should resign.

So what about Jerry Brown and Kamala Harris, who as state attorneys general both refused to defend Proposition 8, the constitutional amendment approved by California voters in 2008 that banned same-sex marriage?

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Still, one could argue that an attorney general is elected to make policy decisions and has some discretion in using the resources of the office. Since locally elected prosecutors decide every day whether to file charges in potential criminal cases, the state’s top law enforcement official probably has some leeway in deciding which laws to defend, says Bernadette Meyler, a constitutional law professor at Stanford.

“It is the role (of the attorney general) to defend state law, but I do think there is discretion about which kinds of cases to defend,” Meyler said. She said Brown’s and Harris’ opt-outs might be justified “to the extent that the office believes in a case less and has to allocate a lot of resources in defending Prop. 8.”

Even so, Meyler said, an attorney general has at least an ethical obligation to defend state laws that the AG considers constitutionally defensible — and, when the decision is to the contrary, to make the reasons clear to the public.