Conservative Legal experts are slamming U.S. Attorney General Eric Holder for his call on Monday to his state counterparts to refuse to enforce state laws that uphold traditional marriage. Holder urged state attorneys general to follow the example of California and five other Democrat-governed states, likening bans on same-sex marriage to laws enforcing racial segregation. He argued that attorneys general do not have an obligation to enforce laws they deem unconstitutional. But, scholars say, he is violating his ethical duty and the Constitution.
John Eastman, who teaches law at Chapman University and chairs the National Organization for Marriage, called Holder’s demand “not just reckless, but lawless,” noting that attorneys general “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.” Carrie Serevino, chief counsel to the Judicial Crisis Network, added that “in a country under the rule of law, the executive doesn’t have free rein to declare laws unconstitutional by default.”
The U.S. Attorney General has no formal authority over state attorneys general, nor any controlling authority over interpretations of the U.S. Constitution, much less state constitutions, several of which enshrine one-man-one-woman marriage. Holder’s announcement also runs contrary to the stated position of President Barack Obama, who reversed his opposition to gay marriage in May 2012 but said he still believed the issue should be left to the states–a position that comports with both the constitution and with Supreme Court precedent.
Moreover, critics say, Holder is asking attorneys general to violate legal ethics. “Attorneys general should provide the same zealous defense to their clients that all lawyers do,” Serevino said. “That means they defend their client even if they disagree, unless there is no viable argument to be made.” Ed Whelan, president of the Ethics and Public Policy Center, agreed. “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.”
The Obama administration has frequently asserted its dubious prerogative to refuse to defend or enforce laws with which it disagrees–and even parts of laws with which it largely agrees. Not only did it decline to defend the Defense of Marriage Act, but it also has refused to enforce existing immigration laws, and has made a habit of failing to enforce various deadlines in Obamacare. Though President Obama campaigned in 2008 against far more moderate exertions of executive power, such as “signing statements,” he has vastly expanded that power.
Numerous analogies demonstrate the outrageous nature of what Holder is demanding. It is the equivalent of a future Republican president refusing to enforce any regulations on gun ownership, based on a strict reading of the Second Amendment, and demanding state attorneys do the same. Alternatively, it is the ironic equivalent of what might have happened had segregationist (and former Democrat governor) George Wallace won the 1968 presidential election and told state attorneys general to ignore civil rights laws and affirmative action policies.
Gay rights advocates applauded Holder’s stance. Gary Buseck, legal director of Gay and Lesbian Advocates and Defenders, told the New York Times: “The answers to these questions are crystal clear….Attorneys general can’t close their eyes to something that’s blatantly unconstitutional. They’re not supposed to defend the laws at all costs.” Yet laws upholding traditional marriage are not “blatantly” unconstitutional. At most, they are subject to intense debate, not just in courts but in legislatures, whose authority Holder is attempting to ignore entirely.
“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,” Serevino noted. The real constitutional threat is an administration that believes it has the power to ignore federal law and presumes to dictate to states that they should ignore their laws as well. That is a form of usurpation against which the Founders warned. So, too, did Obama–before his views “evolved,” both on gay marriage and the Constitution’s separation of powers.