U.S. Attorney General Holder Encourages State AG’s To Not Defend State Laws Prohibiting Same-Sex Marriage

Speaking on Tuesday (February 25, 2014) to a gathering of state attorneys general, U.S. Attorney General Eric Holder suggested they do not have an obligation to defend state prohibitions against same-sex marriage, like Tennessee’s constitutional marriage amendment, against court challenges if they believe the law to be discriminatory.  While his comments applied more broadly than only same-sex marriage laws, he indicated that a decision not to defend a law must be “exceedingly rare” and reserved only for “exceptional circumstances,” and then used same-sex marriage as an example of such circumstances.

To date, six state attorneys general, all Democrats, have refused to defend their state’s prohibition on same-sex marriage.   Holder’s announcement is expected to encourage additional attorneys general to follow suit.

FACT along with other organizations immediately responded to Attorney General Holder’s encouragement to state attorneys general that they violate their ethical and legal duty to uphold the law.

David Fowler, president of The Family Action Council of Tennessee, stated:

“It is appalling that General Holder would urge states not to uphold laws that have not squarely been addressed by the U.S. Supreme Court.  But it is in keeping with his decision not to defend the federal Defense of Marriage Act. Thankfully, unlike General Holder, our state’s Attorney General understands his obligation to defend the law, not decide what he wants the law to be.”

Wisconsin’s Republican Attorney General J.B. Van Hollen stated:

“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.”

“If there’s one clear-cut job I have, it’s to defend my Constitution.  There is no one else in position to defend the State Constitution if it comes under attack.”

Ed Whelan, president of the Ethics and Public Policy Center, former law clerk for Justice Antonin Scalia, former counsel to the Senate Judiciary Committee:  

“When there are non-frivolous grounds for doing so, a state attorney general has a fundamental ethical duty as a lawyer to defend state laws against attacks under federal law. That standard means that state attorneys general are obligated to defend state marriage laws.  It’s unfortunate and outrageous that Attorney General Holder doesn’t understand that, but it’s hardly surprising. Holder, after all, departed from DOJ’s longstanding practices when he refused to defend DOMA, and he has routinely indulged his political preferences at the expense of the rule of law.”

Carrie Severino, chief counsel to the Judicial Crisis Network, former law clerk for Justice Clarence Thomas:

 “Eric Holder apparently isn’t satisfied with refusing to carry out his own oath to defend the constitution: he wants to see state attorneys general do the same.  But in a country under the rule of law, the executive doesn’t have free rein to declare laws unconstitutional by default. Attorneys general should provide the same zealous defense to their clients that all lawyers do. That means they defend their client even if they disagree, unless there is no viable argument to be made.  Hotly-debated political issues like the redefinition of marriage are precisely the type of thing that must be left to the voters state by state, not by the fiat of a single state officer.”

John Eastman, Henry Salvatori Professor of Law & Community Service, Dale E. Fowler School of Law at Chapman University and chairman of the National Organization for Marriage:

“Not only was the Attorney General derelict in his duty when refusing to defend DOMA, now he is encouraging state AGs to be derelict in their duties in defending state law defining marriage as between a man and a women.  The [Attorney General] is not just reckless, but lawless.  The Supreme Court just last June based its DOMA decision on the fact that states have the primary authority to determine marriage policy, and issued a ruling over 40 years ago upholding a one-man/one-woman state marriage law against the identical challenge being pressed now.  Historically, AGs of both political parties have determined they had a duty to defend statutes, even statutes they don’t like, unless there was no plausible argument to be made in defense.  To stand on that ground in the context of defending marriage, an institution as old as time itself, is both bizarre and preposterous.  The Attorney General should find a job he’s actually willing to do.”