Attorney General Eric Holder has given the nod to his state counterparts that they do not have to defend laws they consider discriminatory — effectively giving the green light for states to stop defending bans on gay marriage.
Holder’s comments, published Tuesday in The New York Times, could fuel what is already a wave of legal challenges at the state level. In the wake of the federal Defense of Marriage Act being struck down by the Supreme Court last year, several Democratic state attorneys general have taken the unusual step of abandoning their defense of state gay marriage bans.
Among the most recent is Virginia Attorney General Mark Herring, who stood by as a U.S. District Court ruled against his state’s prohibition on same-sex marriage. However, his office said Monday that it would appeal that ruling — in the interest of expediting the appeals process.
The U.S. attorney general’s comments could encourage other state officials to follow in Herring’s footsteps.
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Holder, in the interview, reportedly said that attorneys general should apply a high level of scrutiny on whether to defend a state law when constitutional issues are at stake.
“Engaging in that process and making that determination is something that’s appropriate for an attorney general to do,” Holder said.
He added, in reference to the Brown v. Board of Education case challenging school 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.”
A half-dozen Democratic state attorneys general have abandoned their defense of same-sex marriage bans.
But some Republican officials and gay marriage foes have sharply criticized this approach.
After Oregon’s attorney general, Ellen Rosenblum, decided not to defend such a marriage amendment, National Organization for Marriage President Brian Brown called the move shameful.
“She swore an oath of office that she would enforce all the laws, not just those she personally agrees with. The people are entitled to a vigorous defense of the laws they enact, and the marriage amendment is no exception to that solemn obligation,” he said in a statement.
As for Holder’s comments, Wisconsin Republican Attorney General J. B. Van Hollen told the Times: “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.”
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