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U.S Attorney General Eric Holder today issued guidance to state attorneys general on same-sex marriage bans, announcing they are under no obligation to defend a ban they believe to be unconstitutional. Since before his election, President Barack Obama had said he believed DOMA, the Defense of Marriage Act of 1996 that banned the federal government from recognizing same-sex marriages, was unconstitutional, and later, as president, joined with Holder in deciding to not defend that ban in federal court.
“Mr. Holder said when laws touch on core constitutional issues like equal protection, an attorney general should apply the highest level of scrutiny before reaching a decision on whether to defend it,” the New York Times reports. “He said the decision should never be political or based on policy objections.”
“Engaging in that process and making that determination is something that’s appropriate for an attorney general to do,†Mr. Holder said.
As an example, Mr. Holder cited the landmark Brown v. Board of Education case that forced public school integration in 1954.
“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,†Mr. Holder said.
The Times noted that “Mr. Holder was careful not to encourage his state counterparts to disavow their own laws.” Holder reportedly made the comments in an interview with the Times.
As the nation’s chief law enforcement officer, while this is merely “guidance,” Holder’s message is loud and clear: bans on marriage equality — as many federal courts have repeatedly found — are unconstitutional and there’s no need to defend them any more.
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Image by Ryan J. Reilly via Flickr