Eric Holder Says State Lawyers Don't Have to Defend Gay Marriage Bans

Attorney General Eric Holder said state lawyers don't have to feel obliged to defend laws they view as discriminatory, drawing criticism from Republicans and state's rights advocates.

Attorney General Eric Holder said Monday that state attorneys general don't have to defend laws that they believe to be discriminatory, drawing fresh questions over the sanctity of state’s rights and the issue of gay marriage.

Six state attorneys general in Virginia, Pennsylvania, California, Illinois, Nevada, and Oregon, all Democrats, have refused to defend bans on same-sex marriage in their states against lawsuits filed by gay couples, the Associated Press reports. Additionally, New Mexico’s Democratic Attorney General, Gary King, has challenged laws that say same-sex marriage is not allowed in his state.

Holder’s comments come in the wake of a controversial bill in Arizona that would allow businesses to defend their decision not to serve same-sex couples in the name of “religious freedom.” Gov. Jan Brewer has until Friday to sign SB 1062, but state senators who regret their decision to support the bill, along with hordes of protesters, are asking her to veto it.

Holder, who has referred to gay rights as one of “the defining civil rights challenges of our time,” was asked about the bill in an interview with The New York Times. He said that while he doesn’t have a view on the constitutionality of the bill, it will face legal challenges if it becomes law, and the state’s attorney general would have to decide whether or not to defend it.

While the Times reports that Holder wasn’t encouraging the attorneys to completely bypass their state laws, he did say that those who have carefully studied gay marriage ban could refuse to defend them after using the “highest level of scrutiny,” and that the decision shouldn't be a political one.

Holder used the landmark 1954 Brown vs. Board of Education Supreme Court case as an example of where state attorney generals can work independent of the state law. “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.

Holder’s comments have already provoked ire from members of the National Association of Attorneys General, a bipartisan group that he is set to address today. As the Times reports, it is quite unusual for the nation’s attorney general to give advice to his state counterparts, many of whom sound quite resentful of his meddling.

Update: 1:54p.m. Republican state attorneys general said today that they will continue to defend their state's gay marriage bans, calling Holder's comments the "wrong message" from the Obama administration, The Washington Post reports.

“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. “We are the ultimate defenders of our state constitutions.”

“If there’s one clear-cut job I have, it’s to defend my Constitution,” Van Hollen said. “There is no one else in position to defend the State Constitution if it comes under attack.” The Supreme Court struck down the Defense of Marriage Act, but has not ruled on whether same-sex marriage is a constitutional right.