Holder Blasted For Encouraging State AGs to Ignore Same-Sex Marriage Bans

February 25, 2014 - 5:00 PM

Eric Holder

Attorney General Eric Holder at the annual Attorneys General Winter Meeting in Washington, Feb. 25, 2014. (AP photo)

(CNSNews.com) - Attorney General Eric Holder’s latest assertion that state attorneys general are not required to defend their states’ legal bans on same-sex marriage was met with howls of outrage by conservative legal experts and members of the Republican Attorneys General Association (RAGA), who accused Holder of being “derelict in his duty” by “repeatedly ignoring the rule of law.”

“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,” responded Carrie Severino, chief counsel to the Judicial Crisis Network (JCN).

“But in a country under the rule of law, where the executive doesn't have free rein to declare laws unconstitutional by default, attorneys general should provide the same zealous defense all lawyers do. That means they defend their client even if they disagree, unless there is no viable argument to be made,” Severino, a former law clerk for Supreme Court Justice Clarence Thomas, pointed out.

“Hotly-debated political issues like the redefinition of a marriage are precisely the type of thing that must be left to the voters of a state, not the fiat of a single state officer,” she added.

RAGA chairman Alan Wilson, South Carolina’s attorney general, agreed. “This administration is repeatedly ignoring the rule of law. We’re seeing the same thing happen with Obamacare as the Obama administration continues to pick and choose which parts of the law they will enforce and which they will delay without legislative action.

“Our freedom depends on upholding the rule of law and obtaining the consent of the governed. Republican attorneys general will continue to fight every single day to protect our Constitution and defend states’ rights,” Wilson vowed.

Holder told a gathering of state attorneys general in Washington that they will face no opposition from the Justice Department if they ignore their states’ statutory or constitutional bans on recognizing same-sex marriages because the laws do not “advance the values that once led our forebears to declare unequivocally that all are created equal and entitled to equal opportunity.”

The Democratic attorneys general of four states – Nevada, Oregon, Pennsylvania, and Virginia – have already declared they will refuse to defend their states’ ban on same-sex marriage in court.  Their counterparts in California and Illinois also refused to do the same until the bans in their states were overturned.

But Montana Attorney General Tim Fox pointed out that “what General Holder is asking state attorneys general to do is accept a gratuitously offered non-binding legal opinion on an issue that has not been decided by a national court of competent jurisdiction at this time. The approach is as inappropriate, as it is unprecedented.”

Not only was the Attorney General derelict in his duty when refusing to defend DOMA (federal Defense of Marriage Act), 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. This not just reckless, but lawless,” John Eastman, a law professor at Chapman University and chairman of the National Organization for Marriage (NOM) said.

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,” he added.

Ed Whelan, president of the Ethics and Public Policy Center (EPPC), and former law clerk to Supreme Court Justice Antonin Scalia, pointed out that “where 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.”

In a Feb. 2 oped in The Washington Post, Colorado Attorney General John Suthers wrote that “I personally oppose a number of Colorado’s laws as a matter of public policy, and a few are contrary to my religious beliefs. But as my state’s attorney general, I have defended them all — and will continue to.”

Suthers, a Republican, warned that the “litigation veto…undermines our democratic culture. Corrections of legislative mistakes should come from the people or their legislatures, except when the separation of powers requires courts to step in and uphold constitutional principles.”