Attorney General Eric Holder has decided that the federal government must intrude in the internal affairs of states on the issue of gay rights. On Monday, he said that the attorney generals of states are free to defend the laws of their states if they think those laws are discriminatory.
Holder is encouraging the lawyers to emulate six attorney generals who have already refused to defend laws in their states banning same-sex marriage. All are Democrats.
Holder said it is an issue of equal protection under the law, remarking, “Engaging in that process and making that determination is something that’s appropriate for an attorney general to do.” Using a race case to bolster his argument, he cited the 1954 case of Brown vs. Board of Education: “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.”
Holder has referred to gay rights as one of “the defining civil rights challenges of our time.” On Tuesday, he is expected to give a speech at the National Association of Attorneys General. There is already some opposition to his stance; Wisconsin Attorney General J. B. Van Hollen, a Republican, said:
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. We are the ultimate defenders of our state constitutions. If there’s one clear-cut job I have, it’s to defend my Constitution. There is no one else in position to defend the State Constitution if it comes under attack.
He was echoed by Colorado Attorney general John W. Suthers, also a member of the GOP, who said, “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.”
Congress and the Supreme Court have not made it a federal law that same-sex couples be allowed to marry, so it is up to the states. Colorado has a constitutional ban on same-sex marriage.
Gary Buseck, legal director of Gay and Lesbian Advocates and Defenders, blustered, “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.”