In an interview published in the New York Times yesterday, Attorney General Eric Holder argued, according to the Times, that “state attorneys general are not obligated to defend laws that they believe are discriminatory” and “said that officials who have carefully studied bans on gay marriage could refuse to defend them.”
Heritage Legal Fellow Andrew Kloster disagrees, saying, “Attorney General Holder argues that decisions to defend a law should not be based on political considerations; he should take his own advice.”
Asked about the role of an attorney general, Ed Meese, who served as attorney general during President Ronald Reagan’s second term, said, “When I was attorney general, our rule was that we had a duty under the constitution to defend any statute passed by Congress unless there was absolutely no legal basis whatsoever for defending it. As I remember, I don’t believe there was ever such a situation that occurred while I was in office.”
“In regard to state attorney generals,” Meese continued, “they also have a similar responsibility to defend the provisions of their state constitutions, including measures that may have been determined by the voters.”
Kloster said that attorney generals should assume they should defend current laws, unless there were unusual circumstances.
“In general, state AGs and the United States Attorney General have a duty to faithfully defend all laws in court, unless there is no reasonable argument to be made that a law is constitutional,” he adds. “State marriage laws have not been invalidated by the U.S. Supreme Court, and many of these laws have been on the books since those states were founded.”
In 2011, Holder himself refused to defend in courts section 3 of the Defense of Marriage Act, which related to the definition of marriage used in federal law.
“State AGs certainly have reasonable arguments that they can make to defend these laws in court, and Holder’s plea for them not to defend these laws is based on the same personal political considerations which he purports to disdain,” Kloster comments. “Each state Attorney General should make an independent assessment of his or her obligations and faithfully execute those obligations.”
Currently, six Democrat state attorney generals have refused to defend their states’ respective laws defining marriage as between a man and a woman.
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