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:
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.