Eric Holder Tells State Attorneys General: You Can Refuse to Defend Anti-Gay Marriage Laws

In a speech today to the National Association of Attorneys General in Washington, U.S. Attorney General Eric Holder told state attorneys general that they are not compelled to defend state laws banning same-sex marriage.

HolderVia the transcript of Holder's remarks as prepared for delivery, provided to Towleroad from the Justice Dept:

[Attorneys general must decide] not merely to use our legal system to settle disputes and punish those who have done wrong, but to answer the kinds of fundamental questions – about fairness and equality – that have always determined who we are and who we aspire to be, both as a nation and as a people.

These are the questions that drove President Obama and me to decide, in early 2011, that Justice Department attorneys would no longer defend the constitutionality of Section 3 of the Defense of Marriage Act. 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. Last summer, the Supreme Court issued a historic decision – United States v. Windsor – striking down the federal government’s ban on recognizing gay and lesbian couples who are legally married. This marked a critical step forward, and a resounding victory for equal treatment and equal protection under the law.

More recently – and partly in response to the Windsor decision – a number of state attorneys general, including those in Pennsylvania, Nevada, Virginia – and, just last week, Oregon – have reached similar determinations after applying heightened scrutiny to laws in their states concerning same-sex marriage.

Any decisions – at any level – not to defend individual laws must be exceedingly rare. They must be reserved only for exceptional circumstances. And they must never stem merely from policy or political disagreements – hinging instead on firm constitutional grounds. But in general, I believe we must be suspicious of legal classifications based solely on sexual orientation. And we must endeavor – in all of our efforts – to uphold and advance the values that once led our forebears to declare unequivocally that all are created equal and entitled to equal opportunity.

This bedrock principle is immutable. It is timeless. And it goes to the very heart of what this country has always stood for – even though, as centuries of advancement in the cause of civil rights have shown, our understanding of it evolves over time. As I said just after the Administration’s decision on DOMA was announced, America’s most treasured ideals were not put into action or given the full force of law in a single instant. On the contrary: our ideals are continually advanced as our justice systems – and our Union – are strengthened; and as social science, human experience, legislation, and judicial decisions expand the circle of those who are entitled to the protections and rights enumerated by the Constitution.

As we gather here in Washington today, I believe that our highest ideals – realized in the form of landmark Supreme Court rulings, from Brown to Zablocki, from Romer to Lawrence, from Loving to Windsor – light a clear path forward. They have impelled us, in some instances, to extraordinary action. And the progress we’ve seen has been consistent with the finest traditions of our legal system, the central tenets of our Constitution, and the “fundamental truth” that, as President Obama once said, “when all Americans are treated as equal . . . we are all more free.”

In an interview yesterday with the NYT, Holder said, in advance of the speech: “Engaging in that process and making that determination is something that’s appropriate for an attorney general to do."

Some Republicans, of course, are not happy with Holder's remarks:

“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.”


  1. Dback says

    I appreciate and admire Holder and Obama for their gutsy integrity on this, but I am leery lest it somehow come back and bite them in the butt. All those conservatives who didn’t blink when Bush was doing end-runs around the Constitution must be losing their minds now that, in their eyes, Obama has raised the ante.

  2. Bill Perdue says

    That’s good.

    Question 1 – when will Holder order the arrest of Scott Lively, Jimmy Swaggart, Obama BF Rick Warren, Pat Robertson, Obama BF Donnie McClurkin and others who regularly commit crimes against humanity.

    Answer – never.

    Question 2 – when will Holder quit claiming that Obama has the right to order the racist and extralegal murders of US citizens like Anwar al-Aulaqi, Samir Khan, ‘Abd al-Rahman Anwar al-Aulaqi and Jude Mohammed. One was a sixteen year old boy from Denver Colorado. Keep in mind that Obama and Holder are going to murder again.

    Answer – never.

  3. Derrick from Philly says

    Am I the only person in this world who thinks tha Jeffrey Holder is sexy? Maybe so.

    Bill Perdue,

    there will never be another socialist revolution. Give it the up, will ya’?

  4. anon says

    I don’t recall a first socialist revolution either.

    Where Holder might get into trouble is with the ICC, but even that is unlikely since they haven’t gotten around to Syria, North Korea, several African states, Thailand, Pakistan, etc, etch.

    As to this whole new round of state nullification efforts, it will come back to haunt activists when states don’t defend popular referendums of either political persuasion, particularly in states like CA that pass them regularly. Don’t like your campaign finance reform? The AG doesn’t have to defend it in court! Don’t like amnesty for immigrants and drug legalization, the AG doesn’t have to defend it in court! Yeah, nullification! Indeed, Holder is essentially on record of saying that even law enforcement is not required when the state doesn’t like the law.

    This stuff should end in court so the laws can be properly struck down under the 14th amendment.

  5. says

    Holder very specifically addressed state AG’s not defending laws that violate fundamental rights based on sexual orientation that have been declared unconstitutional by the courts. Nothing more.

  6. Hey Darlin' says

    If any other unconstitutional amendment was put in a states constitution the states attorney general wouldn’t enforce it. It’s no different that it’s against same sex marriage, but it seems some states think so. This is a reminder from Mr. Holder.

  7. says

    @Anon: Your fears aren’t grounded in reality or in what Holder actually said. He said AG’s should never refuse to defend a law unless, after careful consideration, they believe it is clearly unconstitutional, as the marriage bans are (multiple court decisions already back up this assessment). Any AG that refuses to defend a law that is clearly constitutional is going to quickly make a fool of himself when someone else defends it for him and he loses.

    Others can and will step in to defend the marriage bans, and in all likelihood they’ll lose. The 6 state AG’s and counting will undoubtedly be on the right side of history; if they didn’t firmly believe that they wouldn’t be putting their careers on the line.

  8. says

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  9. Artie_in_Lauderdale says

    @ Bill Perdue,

    You are forever trying to convince people that giving Republicans a helping hand by depressing the Democratic vote will somehow create the conditions that will usher in a socialist revolution and the abolition of private property. I don’t think anyone is fooled. I think people everyone understands that giving Republicans a helping hand will only usher in more right-wing Republican governance. Nice try, though.

  10. Bill Perdue says

    @ DERRICK FROM PHILLY – why do you approve of Obama’s union busting, his racist murders of American citizens, his wars of aggression and his attempts to gut Social Security and Medicare?

    @ ARTIE_IN_LAUDERDALE It doesn’t matter which party rules, both are right wing parties. Democrats are Republicans in drag.

  11. Derrick from Philly says

    Oh, God. I could remember Bill Perdue’s name but couldn’t remeber Eric Holders.

    Well, Jeffrey Holder was sexy too…a Caribbean actor/dancer who was probably bisexual (atleast for a while).