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Holder To State Attorneys General: You Don't Have To Enforce Laws You Don't Like

In an address to the National Association of Attorneys General, Tuesday morning, Eric Holder, the nation’s top law enforcement official, urged state attorneys general to refuse to enforce state bans on same-sex marriage.

He had foreshadowed this latest example of the Obama administration flouting of the law, in an interview with the New York Times, yesterday, in which he said his state counterparts do not have to defend laws and bans in court that they think are discriminatory.

U.S. Attorney General Eric Holder’s comments to the New York Times came after at least five state lawyers, all of them Democrats, came under fire for refusing to try and defeat legal challenges to bars on same-sex unions in their areas.

Conservatives have criticized the stands taken by progressive state-level attorneys general, saying they have a duty to defend state law, whether they agree with the policy or not.

“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.”

Here are the relevant portions of Holder’s remarks Tuesday:

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…

“…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.

What Holder is really telling the nation’s Attorneys General, is that it is okay not to enforce laws that are hostile to a progressive agenda.

If State AG’s can pick and choose which of their own laws to defend or enforce based on their ideological persuasions, why would they stop at gay marriage bans? 

The American Thinker’s Rick Moran asks the obvious question, “what is to prevent them from interpreting the Constitution in such a way that prevents a state from enforcing any number of laws regarding freedom of religion or speech? I daresay there would be a lot of laws that Holder would want enforced that state AG’s would now have the freedom to ignore.”

And imagine if it were a Republican Attorney General issuing the same directive. As Joel Pollak noted at Big Government, “there are 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.”

In a functioning Democracy, it’s not the Attorney General’s job to decide which laws are worth defending, and which are not. The way we do it in a Democratic Republic, is amend or repeal laws we don’t like,  through the courts and legislatures.

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