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Eric Holder speaks out on state marriage equality bans

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Attorney General Eric Holder. Attribution: Wikipedia
Attorney General Eric Holder. Attribution: Wikipedia

Ardent followers of marriage equality news will know that a new normal has emerged in equal marriage litigation: more and more, Democratic state attorneys general are opting not to defend their states’ marriage bans, even in states like Virginia and Nevada that are more purple than blue.

Yesterday, in an interview with the New York Times, U.S. Attorney General Eric Holder expressed careful, but clear, support for that position–a position he himself has taken on the federal level:

Attorney General Eric H. Holder Jr. on Monday injected the Obama administration into the emotional and politicized debate over the future of state same-sex marriage bans, declaring in an interview that state attorneys general are not obligated to defend laws that they believe are discriminatory.

Mr. Holder was careful not to encourage his state counterparts to disavow their own laws, but said that officials who have carefully studied bans on gay marriage could refuse to defend them.

It is highly unusual for the United States attorney general to advise his state counterparts on how and when to refuse to defend state laws. But 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.

Holder is scheduled to speak to the National Association of Attorneys General later today.  The group’s president, Attorney General J.B. Van Hollen of Wisconsin–who is a Republican–expressed to the Times his disagreement with Holder’s move: “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.  We are the ultimate defenders of our state constitutions.”

In early 2011, Holder and President Obama announced that they no longer viewed Section 3 of the Defense of Marriage Act as constitutional, and that the Justice Department stop defending the law in court.  In 2013, Holder’s Justice Department argued against DOMA before the U.S. Supreme Court, and filed a brief with the Court arguing against the constitutionality of Proposition 8, California’s marriage equality ban, and other state laws like it.

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