U. S. Attorney General Backs State Attorney Generals Who Refuse to Defend Marriage Bans

Not to beat the issue to death, but ethical state attorneys general are correct to refuse to defend anti-gay marriage bans that they deem to be unconstitutional under the United States Constitution.  Which is why U.S. Attorney General Eric Holder has come out to back the state attorneys general, including Virginia Attorney General Mark Herring, who have made the decision not to defend anti-gay animus motivated state same sex marriage bans.  It is those who defends such unconstitutional laws and amendments - just as past Virginia attorney generals defended Jim Crow laws and bans on interracial marriage - who are on the wrong side of the law and on the wrong side of history.  Here are excerpts from a piece in the New York Times on Holder's pronouncement:

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.  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 stand behind their state laws, even if they do not agree with 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.

“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, which 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.

The nation’s first black attorney general, Mr. Holder has said he views today’s gay-rights campaigns as a continuation of the civil rights movement that won rights for black Americans in the 1950s and ’60s. He has called gay rights one of “the defining civil rights challenges of our time.”

Mr. Holder is scheduled to address the National Association of Attorneys General at a conference on Tuesday, but reports of his comments drew immediate criticism from the president of the bipartisan group.

“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.”

[I]n Nevada, Oregon, Pennsylvania and Virginia, state attorneys general have refused to defend bans on same-sex marriage. Attorneys general in California and Illinois similarly refused to defend bans that were later 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.”

Sadly, too many Republican attorneys general prefer to violate their duty of candor and honest to the courts and instead pander to the religious extremists and hate groups of the GOP base.  It is they, not the six attorneys general who have refused to defend marriage bans, who are ethically and in my view morally challenged.