Holder Says State Attorneys General Don’t Have to Defend Gay Marriage Bans


Washington — Attorney General Eric H. Holder Jr. said Monday that state attorneys general who believe that laws in their states banning same-sex marriage are discriminatory are not obligated to defend them.

Mr. Holder was careful not to encourage his state counterparts to disavow their own laws, but his position, which he described in an interview with The New York Times, injects the Obama administration into the debate over gay marriage playing out in court cases in many states.

Six state attorneys general – all Democrats – have refused to defend bans on same-sex marriage, prompting criticism from Republicans who say they have a duty to defend their state laws, not just the ones they agree with.

Mr. Holder said when laws touch on core constitutional issues like equal protection, an attorney general should apply the highest level of scrutiny before reaching a decision on whether to defend it. He said the decision should never be political or based on policy objections.

“Engaging in that process and making that determination is something that’s appropriate for an attorney general to do,” Mr. Holder said.

As an example, Mr. Holder cited the landmark Brown v. Board of Education case that forced public school integration in 1954.

“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,” Mr. Holder said.

It is highly unusual for the United States attorney general to advise his state counterparts on how and when to do refuse to defend state laws. Mr. Holder is scheduled to address the National Association of Attorneys General at a conference on Tuesday.

“It really isn’t his job to give us advice on defending our constitutions any more than it’s our role to give him advice on how to do his job,” said Attorney General J.B. Van Hollen of Wisconsin, a Republican who serves as president of that bipartisan group. “We are the ultimate defenders of our state constitutions.”

Mr. Holder’s own refusal to defend the federal Defense of Marriage Act in 2011 helped lead to last year’s Supreme Court decision striking down the law as unconstitutional.

Despite last year’s ruling, the Supreme Court has not weighed in on whether gay couples have a constitutional right to marry. The legal battleground, for now, has shifted to the states, and the collective voice of several attorneys general refusing to defend their laws could help sway those cases.

One of those cases is in Wisconsin, where four same-sex couples sued earlier this month to overturn the state’s constitutional amendment banning gay marriage.

Mr. Van Hollen said Mr. Holder’s analysis might make sense in rare cases related to state laws. In states that have passed constitutional amendments, however, attorneys general must defend them, he said.

“If there’s one clear-cut job I have,” he said, “it’s to defend my Constitution.”

In Nevada, Oregon, Virginia and Pennsylvania, state attorneys general have refused to defend bans on same-sex marriage. Attorneys general in California and Illinois once similarly refused to defend bans that have since been overturned.

“The answers to these questions are crystal clear,” said Gary Buseck, legal director of Gay and Lesbian Advocates and Defenders. “Attorneys general can’t close their eyes to something that’s blatantly unconstitutional. They’re not supposed to defend the laws at all costs.