February 25, 2014 at 12:39 pm EST | by Chris Johnson
Holder OKs attorneys general not defending marriage bans
Eric Holder, United States Justice Department, Barack Obama Administration, Lincoln Memorial, the 50th Anniversary of the March on Washington, civil rights, gay news, Washington Blade

U.S. Attorney General Eric Holder said state attorneys general don’t need to defend marriage bans in court (Washington Blade file photo by Michael Key).

U.S. Attorney General Eric Holder told state attorneys general on Tuesday that refusing to defend same-sex marriage bans in court is consistent with the American idea that “all are created equal and entitled to equal opportunity.”

Holder made the remarks as part of his speech at the winter meeting for the National Association of Attorneys General, which this year took place in D.C. at the Ritz Carlton.

The attorney general said he believes state officials can decline to defend marriage bans in court as he maintained decisions not to defend laws “must be exceedingly rare” and not stem from policy disagreements.

“But in general, I believe we must be suspicious of legal classifications based solely on sexual orientation,” Holder said. “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.”

Holder’s remarks are consistent with his remarks during an interview published Monday in The New York Times in which he was quoted as saying attorneys general aren’t obligated to defend laws they believe are discriminatory.

As Holder noted, attorneys general in Pennsylvania, Virginia, Nevada and, most recently, Oregon have determined they cannot defend their state marriage bans in court following the Supreme Court decision against the Defense of Marriage Act. Each of the states that these official represent have continued to enforce the marriage bans as the litigation proceeds through the courts.

Holder said these decisions not to defend the bans against lawsuits seeking marriage equality is along with lines of his decision in February 2011 to no longer defend DOMA in court.

“As I’ve said before, this decision was not taken lightly,” Holder said. “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.”

Doug NeJaime, who’s gay and a law professor at University of California, Irvine, said Holder’s declaration amounts to support for attorneys general who don’t wish to defend marriage bans in their states.

“While I anticipate that some state attorneys general will dismiss Holder’s comments as unnecessary meddling in state affairs, I view his remarks as a declaration regarding sexual orientation equality that is consistent with his — and the Administration’s — position on these issues,” NeJaime said. “And given that multiple attorneys general at the state level have now declined to defend their state marriage bans, he is giving them support.”

In recent months, Holder has been a mouthpiece for the Obama administration on the advancement of LGBT rights.

The attorney general delivered the announcement that the federal government would recognize same-sex marriages performed in Utah when they were briefly available in the state. More recently, Holder announced the Justice Department would recognize same-sex marriages for its purposes, which includes the right to decline to testify against a spouse in court and the ability to file jointly file bankruptcy.

“This, after all, is the essential duty to which all of us – as attorneys general – have been sworn: not just to win cases, but to see that justice is done,” Holder said. “This is the cause that brings us together in Washington this week – working to confront the threats and seize the opportunities before us. And this is the extraordinary task with which the American people have entrusted the leaders in this room – and the challenge that all justice professionals are called to address: 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.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

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