Is Eric Holder Right About State Gay Marriage Bans?

The federal attorney general said his state counterparts can stop defending such laws.

Attorney General Eric Holder.

Attorney General Eric Holder

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Attorney General Eric Holder said Monday that state attorneys general are not required to defend state laws they believe to be discriminatory. Specifically, he said those who think state bans on gay marriage are unconstitutional are not obligated to defend them. Comparing today’s gay rights fight to the civil rights movement in the 1950s and 60s, Holder said he would have challenged discriminatory laws on the books during the time of racial segregation. “If I were attorney general in Kansas in 1953, I would not have defended a Kansas statute that put in place separate-but-equal facilities,” Holder said.

He encouraged state attorneys general to intensely scrutinize state laws like those that address equal protection, but not to oppose them based upon political or policy leanings. Holder’s comments are not customary for a federal attorney general, as they do not frequently instruct their state counterparts on how to do their jobs.

[See a collection of political cartoons on gay marriage.]

In 2011, Holder announced that the Obama administration would stop defending the Defense of Marriage Act because discrimination based on sexual orientation failed to meet a “more heightened standard of scrutiny.” The law, which prevented same-sex couples from receiving federal benefits, was struck down as unconstitutional by the Supreme Court in 2013.

But some have criticized this attitude, arguing that attorneys general cannot pick and choose which laws to defend based on personal beliefs. Republican Attorney General John Suthers of Colorado said it is the responsibility of those who hold his office to “play their assigned role in the system to ensure legal controversies are resolved.” Suthers said “litigation vetoes,” or deciding to halt defense of state bans on gay marriage, have no legal footing.

“It appears that some attorneys general are wielding the litigation veto for the same reasons a governor might wield a constitutional veto: They strongly disagree with the law,” Suthers said. “But in contrast to the president or a governor, there is no constitutional authority for this litigation veto. To the contrary, it undermines many important principles of our democracy.”

[Check out our editorial cartoons on President Obama.]

Several state attorneys general have publicly announced they would no longer defend state laws restricting same-sex marriage. In Virginia last month, Democratic Attorney General Mark Herring announced he would not back the state’s 2006 referendum banning such marriages. The Virginia law was declared unconstitutional 10 days ago, and an appeal was filed Monday. Attorneys general in Nevada, Oregon and Pennsylvania have also declined to defend state bans on gay marriage. Those in California and Illinois also refused to defend bans that have since been declared unconstitutional.

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