I fear that refusing to defend unpopular or politically distasteful laws will ultimately weaken the legal and moral authority that attorneys general have earned and depend on. We will become viewed as simply one more player in a political system rather than as legal authorities in a legal system. —Colorado Attorney General John Suthers
WASHINGTON — State attorneys general are not obligated to defend laws in their states banning same-sex marriage if the laws discriminate in a way forbidden by the Constitution, Attorney General Eric Holder told his state counterparts Tuesday.
Holder cited his own experience in refusing to defend the federal Defense of Marriage Act, as well as similar stances taken more recently by state attorneys general, in saying that laws that laws that discriminate based on sexual orientation should be given close attention and greeted with suspicion.
He didn't push his audience to refuse to defend same-sex marriage bans, and said any decision to do so must not be made lightly. But he said it's imperative to uphold the values "that all are created equal and entitled to equal opportunity."
"Any decisions — at any level — not to defend individual laws must be exceedingly rare," Holder said at a meeting of the top law enforcers' national association. "And they must never stem merely from policy or political disagreements — hinging instead on firm constitutional grounds."
His own view, he said, is that "we must be suspicious of legal classifications based solely on sexual orientation."
The issue has been divisive at the state level, with some attorneys general declining to defend same-sex marriage bans when challenged in court. Others have stated publicly that they are sworn to uphold laws in the state, whether or not they agree with them.
"I fear that refusing to defend unpopular or politically distasteful laws will ultimately weaken the legal and moral authority that attorneys general have earned and depend on," Colorado Attorney General John Suthers, a Republican, wrote in a Washington Post opinion column this month. "We will become viewed as simply one more player in a political system rather than as legal authorities in a legal system."
Democratic attorneys general in six states — Virginia, Pennsylvania, California, Illinois, Oregon and Nevada — have declined to defend same-sex marriage bans that have been challenged in court by gay couples.
The remarks come on the heels of a Justice Department announcement that same-sex spouses cannot be compelled to testify against each other, should be eligible to file for bankruptcy jointly and are entitled to the same rights and privileges as federal prison inmates in opposite-sex marriages.
Holder himself refused to defend the federal Defense of Marriage Act in 2011, which helped lead to last year's Supreme Court decision striking down a key part of that law that denied gay married couples the federal benefits and privileges enjoyed by heterosexual couples.
"As I've said before, this decision was not taken lightly. Our actions were motivated by the strong belief that all measures that distinguish among people based on their sexual orientation must be subjected to a heightened standard of scrutiny — and, therefore, that this measure was unconstitutional discrimination," Holder said.
Mississippi Attorney General Jim Hood said he respected that Holder "approached it in a mindset that reasonable legal minds can disagree on an issue, as to how we approach it."
Hood said he has not yet been asked to defend his state's ban on same-sex marriage, but has been watching the court fights in other states.
J.B. Van Hollen, the Republican attorney general of Wisconsin and president of the attorney generals association, disagreed with Holder, saying the job of any attorney general is to uphold, not challenge, their state's constitution.
"We are the ultimate defenders of our state constitutions — not the United States attorney general or the attorney general from another state," he said, adding, "It is our duty and obligation to defend them, or no one else will."