Eric Holder to state AGs: You don’t have to defend your state’s ban on gay marriage, you know

posted at 6:01 pm on February 25, 2014 by Allahpundit

Technically true but dumb and counterproductive of him to say so.

It is highly unusual for the United States attorney general to advise his state counterparts on how and when to refuse to defend state laws. But 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. 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, which 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.

That’s what he told the NYT in an interview. Today he reiterated the point at a gathering of state attorneys general:

Speaking to the National Association of Attorneys General, Holder said that any decision not to defend individual laws in court must be “exceedingly rare” and reserved for “exceptional circumstances.” He indicated that legal challenges to gay marriage bans would qualify as such a circumstance.

“In general, I believe that we must be suspicious of legal classifications based solely on sexual orientation,” he said.

What good does any of this do? He doesn’t need to encourage any more legal challenges to gay marriage bans; there are a bunch already pending in federal and state courts and the ones that have already been heard have come down on Holder’s side. He doesn’t need to remind state AGs that they can decline to defend a law if they believe in good faith that it’s unconstitutional. California already took that position on Prop 8. Virginia’s newly elected AG, Mark Herring, took it last month. Holder himself took it on DOMA. Even conservative stalwart Ken Cuccinelli took it when he was attorney general of Virginia (albeit in a matter unrelated to gay marriage). State AGs are, by definition, experienced lawyers; they don’t need ethical tutelage from the guy who presided over Fast & Furious and who designated a reporter as a criminal co-conspirator so that he could snoop on him. It doesn’t even make sense politically for Holder to do this. Laying aside the propriety of the U.S. Attorney General grandstanding for liberals by pushing his “advice” on state legal departments, who doesn’t know at this point that Holder and his boss are entirely on the side of gay marriage? What extra goodwill does this earn O from gay rights activists and their sympathizers?

Beyond that, no matter how many caveats Holder uses to hedge against the precedent he’s setting here (“exceedingly rare,” “exceptional circumstances”), the fact is that he’s mainstreaming the practice of the executive ignoring the laws he’s sworn to defend. That’s entirely in keeping with his boss’s M.O. but it bothered the Supreme Court enough that they felt obliged to include this bit in the DOMA case they decided last year. Remember, Holder and the DOJ refused to defend DOMA in court; a third-party group wanted to defend it instead. The Court ruled that it could, simply because it’s a bad idea to let a president or governor decide which expressions of majority will are entitled to a hearing before a judge and which aren’t:

w

The more frequent conscientious recusal becomes, the more elections will decide which statutes do and don’t get a defense when challenged. Yeah, granted, an executive is ethically entitled to refuse to enforce a law he believes to be unconstitutional, but that’s not the rule Obama followed in refusing to enforce the ObamaCare employer mandate and, as this practice becomes more common, that’s not the rule AGs will follow in declining to enforce certain laws. They’ll refuse to enforce because of simple policy disagreement or political expedience, not because of constitutionality (although they’ll come up with some constitutional argument as a fig leaf for their decision). Presumably, the more liberal AGs refuse to enforce laws that interfere with a lefty cause celebre, the more righty AGs will respond in kind by looking for Tenth Amendment arguments to justify refusing to enforce various federal and state laws. Could be that America’s hot-button issues are destined to end up with private groups defending them in court as AGs left and right bow out over constitutional objections. Thanks, Holder.

Exit question: If you support legalized gay marriage, why on earth would you want a figure as divisive as Eric Holder putting even more of his fingerprints on it than he already has? The best thing he can do for SSM fans at this point, especially given the legal momentum they have, is to just sit down and shut up.


Related Posts:

Breaking on Hot Air

Blowback

Note from Hot Air management: This section is for comments from Hot Air's community of registered readers. Please don't assume that Hot Air management agrees with or otherwise endorses any particular comment just because we let it stand. A reminder: Anyone who fails to comply with our terms of use may lose their posting privilege.

Trackbacks/Pings

Trackback URL

Comments

Comment pages: 1 2

theotherone

Schadenfreude on February 25, 2014 at 10:54 PM

What good does any of this do?

Though state AGs no doubt know they can choose not to defend a law, the US AG saying he thinks doing so with respect to gay marriage bans gives the choice an additional degree of legitimacy and / or political cover.

And regardless of whether it does any “good” for the cause of gay marriage, maybe Holder wanted to say it simply because he believes it. This is an issue people feel passionately about.

Finally, we all know how history will view gay marriage proponents. There is something to be said for getting on the record as supporting marriage equality as often and as emphatically as possible.

righty45 on February 25, 2014 at 10:56 PM

Pick and choose the laws to ignore…. I choose to ignore ObamaCare.

Dasher on February 25, 2014 at 11:45 PM

“And if you do, me and the DOJ will sue you and your state for defending it.”

jake49 on February 26, 2014 at 9:53 AM

One of the times that the curtain is pulled back and we get to see what is going on in their head. Of course the USAG would give such advice to State AG’s, since this is the advice that he has given to POTUS and the paradigm that this administration has been operating under for years. Don’t enforce laws you don’t agree with, change laws at your leisure and to maximize political expediency all under the guise that you are doing what’s best for the American people. It is an imperial presidency and a banana republic all rolled up into one.

redcoloredglasses on February 26, 2014 at 9:54 AM

Why this post isn’t already at 5 pages of comments is curious. Doesn’t anybody care what sort of precedent this sets?

Oh right… I forgot. Gay marriage is the new iPod.

somewhatconcerned on February 26, 2014 at 10:30 AM

Holder’s wife owns the building that leases to one of Georgia’s most infamous abortionists, Tyrone Cecil Malloy.

This explains Holder’s zeal to prosecute peaceful pro-life protesters rather than criminal abortionists.

itsnotaboutme on February 26, 2014 at 10:30 AM


Holder should to be executed for treason.

Flange on February 25, 2014 at 6:05 PM

I agree. Him and others of his ilk.

HomeoftheBrave on February 26, 2014 at 10:31 AM

Why this post isn’t already at 5 pages of comments is curious. Doesn’t anybody care what sort of precedent this sets?

Oh right… I forgot. Gay marriage is the new iPod.

somewhatconcerned on February 26, 2014 at 10:30 AM

If anyone else feels like I feel… I’m numb to it all. NOTHING ever changes, nobody with any actual power will do anything to prevent this stuff from happening…

What will anyone’s comment on here do? We are powerless and I fear for this country. I’m not a chicken little, the sky is falling kind of person… but this country is f***ed up.

I don’t currently own a gun but I am very much nearing the point of getting one. I actually fear my government and pretty much don’t trust cops anymore either.

I think this country is on the verge of a major meltdown and nothing we say or do at this point is going to change it.

Nineball on February 26, 2014 at 10:35 AM

This is an issue people feel passionately about.

righty45 on February 25, 2014 at 10:56 PM

Your response is that of a shortsighted fool. The law is supposed to be objective and dispassionate. It should be enforced or legislatively changed, not edited or ignored by the authorities.

Everyone feels passionately about something, and the attitude this administration has toward the law will be used as an excuse by those who follow to do the same. You can be sure they won’t always feel passionately about things you agree with.

Fool.

xNavigator on February 26, 2014 at 10:40 AM

Wouldn’t that piece of advice, about Holder just sitting down and shutting up, be applicable to about everything this AG has finger on..? Twenty six more months, twenty six more months

NeoCon_1 on February 26, 2014 at 11:17 AM

Eric Holder as Attorney General has proven to be partisan, racist, lawless, evil. I hope he’s somehow held accountable some day.

otlset on February 26, 2014 at 11:22 AM

Holder should not be meddling in state’s business.

TerryW on February 26, 2014 at 12:24 PM

gwelf on February 25, 2014 at 6:38 PM

Thanks for all your posts and I am learning. I thought Loving v. Virginia (1967) established marriage as a fundamental right? I understand it invalidated a statute prohibiting interracial marriage. I understand this decision was based on the fact it rested solely on the distinctions drawn according to race. But they did speak to the issue of due process, and went on to talk the law depriving each individual of significant freedom of choosing who to marry. Because the Court said marriage is a fundamental right, the state could not restrict the right to marry for less than compelling reasons.

To be fully open, I gots me a copy of Principles of Constitutional Law so do not give one thought that I am smart. The above is not all me wording.

What am I missing? Was this decision solely based on race? Sorry for being so dumb, but I hope you will help me out.

HonestLib on February 26, 2014 at 1:18 PM

When I was young I was gay.
Then they changed the meaning of that word.
Now I can’t be gay anymore.
And that makes me sad.

Galtian on February 26, 2014 at 1:50 PM

When I was young I was gay.
Then they changed the meaning of that word.
Now I can’t be gay anymore.
And that makes me sad.

Galtian on February 26, 2014 at 1:50 PM

When I read older books and stories to the kids, I have to consciously edit some of the phrases, because the words mean something different to them now.

If I didn’t despise the gender-bender activists for so many things anyway,
I would despise them for that alone.

AesopFan on February 26, 2014 at 2:08 PM

Though state AGs no doubt know they can choose not to defend a law, the US AG saying he thinks doing so with respect to gay marriage bans gives the choice an additional degree of legitimacy and / or political cover.

And regardless of whether it does any “good” for the cause of gay marriage, maybe Holder wanted to say it simply because he believes it. This is an issue people feel passionately about.

Finally, we all know how history will view gay marriage proponents. There is something to be said for getting on the record as supporting marriage equality as often and as emphatically as possible.

righty45 on February 25, 2014 at 10:56 PM

Remember, if you’re elected AG you’re required to uphold and defend the law… but only the ones you like though. And you’re encouraged to not just ignore laws you don’t like, but to encourage others to break the law as well.

It’s like a defense attorney who thinks his client might be guilty would never defend him… defending something as a lawyer is 100% proof positive you support and endorse that position entirely. Defense attorneys only take a case if they’re 100% certain their client is innocent.

Oh wait, none of that is true. Not even a tiny bit of it.

But encouraging government officials to ignore and break the law and promote breaking the law is a good plan, we need a breakdown of law and order so we can usher in a police state…

Not your goal? Why do you want a breakdown of law and order then? Or do you think showing utter disdain for the law, lawmakers, and the process will support law and order in a society? If we make it a joke people will take it more seriously?

gekkobear on February 26, 2014 at 6:48 PM

The way I see it … as the lawlessness increases, we become a stones throw from everyone doing what is right in their own eyes, then the attorneys will no longer have a role in society. Awesome.

AZ_Redneck on February 28, 2014 at 7:44 AM

Comment pages: 1 2