U.S. Attorney General Eric Holder said today that state attorneys general are not forced to defend laws in their states that ban same-sex marriage if they believe it to be unconstitutional.
Holder delivered the remarks at the National Association of Attorneys General Winter Meeting (NAAG) at the Ritz Carlton Hotel in Washington, D.C.
In 2011, Holder and Obama decided that DOJ employees would no longer defend the constitutionality of Section 3 of the Defense of Marriage Act, or DOMA, arguing that the act was unconstitutional discrimination. Since that decision, the Obama Administration has advanced its position on gay rights.
Last summer, the Supreme Court issued a landmark decision in United States vs. Windsor, ruling it unconstitutional under Due Process to restrict the federal interpretation of “marriage” to apply only to heterosexual unions.
“This marked a critical step forward and a resounding victory for equal treatment and equal protection under the law,” Holder noted.
The Obama Administration’s most recent step forward moved to extend veterans benefits to same-sex married couples – a step that Holder wrote in a letter to Congressional leaders “was consistent with the Court’s decision in Windsor in June.”
So far, six attorneys general have refused to defend bans on same-sex marriage, including Mark Herring, D-Va., Kamala Harris, D-Calif., and Ellen Rosenblum, D-Ore.
These state laws are often state constitutional provisions or laws enacted by referendum (people voting directly at the polls), so some find it especially anti-democratic for a state Attorney General not to defend them.
Colorado Attorney General John W. Suthers, R-Colo., voiced his opposition to Holder in a Washington Post editorial earlier this month.
“Depending on one’s view of the laws in question, such a ‘litigation veto’ may, in the short term, be a terrific thing; an unpopular law is defended and the attorney general can take credit. … But in the longer term, this practice corrodes our system of checks and balances, public belief in the power of democracy and ultimately the moral and legal authority on which attorneys general must depend,” Suthers wrote.
Former Virginia Solicitor General, William H. Hurd, also expressed his concern vis-a-vis Holder’s position.
“These are important issues, but the job of an attorney general is not to act as a judge and decide them. His job is to act as an advocate and defend the laws enacted through the democratic process.”