Holder: State AGs have to assure that someone defends state laws banning same-sex marriage

posted at 10:41 am on February 26, 2014 by Ed Morrissey

In the initial reading of Eric Holder’s strange advice to the National Association of Attorneys General on the duty of AGs to defend current law on behalf of the voters, legislature, and executive branches, it sounded as if the US Attorney General endorsed executive-branch nullification. However, it turns out Holder wasn’t quite finished. Byron York reports that Holder returned to the dais later in the event — after the press cleared out — to admit that the laws do have to be defended … but that defense could be outsourced:

Horne brought up the California marriage case in the Supreme Court last year. Because the attorney general of California decided not to defend the state’s referendum defining marriage as the union of one man and one woman, the Supreme Court found that no one had standing to litigate the matter, and thus declined to make a decision clarifying the issue for the nation. Does Holder want that to happen again? “I asked [Holder] if he would agree that if no one else has standing, then the attorney general should make sure that someone is able to defend the case,” Horne told me last night.

To the surprise of some listeners, Holder said yes — someone should defend a state’s marriage laws in court, and it is the attorney general’s job to make that happen. “He agreed that if there is no one else with standing to defend it, then the AG should make sure that somebody defends it,” Horne said. That would mean at the very least that the state attorney general would hire a private attorney to defend the law — an option Holder approved.

So the full version of Holder’s position on one-man, one-woman marriage laws is: State attorneys general should not defend them, but they should hire private lawyers who will. It was a much more nuanced opinion than what was reported in the headlines. And it left some attorneys general pretty unhappy. They have sworn to uphold the laws and constitutions of their states, and there has been no Supreme Court decision invalidating those state laws and constitutions. So they should just make a judgment on their own not to defend?

“It’s troubling to have the attorney general advise you that you can ignore your oath to uphold and defend the constitution and laws of your state,” said Luther Strange, the attorney general of Alabama, who was at the meeting. “We certainly don’t advise him how to enforce federal laws, how to do his duty — so that was a little unusual, to say the least.”

Allahpundit’s reaction remains the best — this is technically true, but possibly even dumber than the initial report indicated. The office of Attorney General exists to represent the state — its government and voters — when challenged in court (and of course in prosecutions). That office exists at no small expense to the voters of those states. Now Holder is telling AGs that they can wash their hands of these cases — and stick voters with the bill for a private defense.

It’s not necessarily unusual to bring in outside counsel, certainly for corporations (who don’t usually keep litigators on salary), and occasionally for public-sector agencies. It might be a little more unusual to see that in an AG office, which presumably has a plethora of capable litigators available for assignment. However, the retention of outside counsel for any legal effort usually comes in response to a gap in skills or specialties, not in a primary area such as defense of existing statutes for an AG. That’s a key part of the job, after all — what the clients (voters) hired the AG to do. Forcing a client to pay for additional counsel just because an attorney doesn’t particularly like the issue should raise significant ethical questions about lawyers who make that kind of choice. The ethical choice would be to resign from the case, or in this context, to resign from the office so that the client can hire an attorney that wants the job.

Besides, attorneys are constantly reminding critics that representing a client does not equate to agreeing with them. Lawyers who represent murderers, rapists, and child abusers point out — rightly — that everyone in America deserves a competent and assertive defense, not just people we like. If that’s the case, then why should AGs get let off the hook from doing their jobs defending laws they don’t personally like, too, especially when the “client” is the democratic process that produced them? That doesn’t mean every law that passes should win in court — I can think of a few gun-control laws that got deservedly overturned, for instance — but the laws deserve a defense at least as much as a murderer or rapist does. And if the AGs involved don’t like that, let them look for another job. So should Eric Holder for offering this advice.

Update: Gabriel Malor wrote about this issue three years ago, but sees the ethical issue a little differently:

Setting aside whether the President can choose not to defend in the courts laws that he believes to be unconstitutional and still meet his obligations under the Take Care Clause, it seems to me there’s a more fundamental problem with his DOMA decision yesterday. He has stated that he (and the Attorney General) believes that DOMA section 3 is unconstitutional and therefore indefensible. But he has instructed Executive agencies to nevertheless continue to enforce this so-called unconstitutional law.

Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.

This split-the-baby approach is unjustifiable. The President has no obligation to enforce unconstitutional laws under the Take Care clause; in fact, I’d say he’s obligated not to enforce unconstitutional laws andthat’s exactly what prior Presidents concluded. President Obama’s waffling—enforce it, but don’t defend it—leads to the same eventual outcome, but only by needless delay and wasteful litigation.


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Cake and eat it.

While the cameras roll, he says what he knows the lapdog media will lap up. When they’re gone, he gives himself a fallback position of objectively defending the law.

The left will rue the day when they were so comfortable with an administration editing and ignoring the clear meaning of the law. It will come back upon them, but it will be too late at that point.

Fools.

xNavigator on February 26, 2014 at 10:44 AM

Don’t pay your taxes.

Schadenfreude on February 26, 2014 at 10:44 AM

…where is the outrage?

KOOLAID2 on February 26, 2014 at 10:44 AM

Let Holder suffer the anarchy he encourages.

Schadenfreude on February 26, 2014 at 10:44 AM

This is great news. Now libertarian leaning AGs wont have to enforce anti-discrimination laws! Right liberals?

gwelf on February 26, 2014 at 10:44 AM

Who does Obama pardon first; Holder or himself?

NotCoach on February 26, 2014 at 10:45 AM

Stupid Colmes just compared teh gayness to slavery.

Fools of HA, those who claim the same, when was a gay owned, mistreated, exploited, bought and sold by a master?

Schadenfreude on February 26, 2014 at 10:45 AM

“Let them eat bake cakes”

Schadenfreude on February 26, 2014 at 10:46 AM

One for Holder

Schadenfreude on February 26, 2014 at 10:46 AM

Stupid Colmes just compared teh gayness to slavery.

Fools of HA, those who claim the same, when was a gay owned, mistreated, exploited, bought and sold by a master?

Schadenfreude on February 26, 2014 at 10:45 AM

Next year’s Oscar Award winning movie: 12 years a gay

gwelf on February 26, 2014 at 10:47 AM

Who does Obama pardon first; Holder or himself?

NotCoach on February 26, 2014 at 10:45 AM

When is the much better question.

Schadenfreude on February 26, 2014 at 10:47 AM

Next year’s Oscar Award winning movie: 12 years a gay

gwelf on February 26, 2014 at 10:47 AM

Next year’s designer PC legislation: Gay Affirmative Action.

oldroy on February 26, 2014 at 10:48 AM

Stupid Colmes just compared teh gayness to slavery.

Fools of HA, those who claim the same, when was a gay owned, mistreated, exploited, bought and sold by a master?

Schadenfreude on February 26, 2014 at 10:45 AM

When was the last time we treated the gheys unequally under the law (if ever)? It’s been many decades since homosexuality was deemed not a mental disorder, and we don’t even force real crazies into institutions anymore.

NotCoach on February 26, 2014 at 10:48 AM

Stupid Colmes just compared teh gayness to slavery.

Fools of HA, those who claim the same, when was a gay owned, mistreated, exploited, bought and sold by a master?

Schadenfreude on February 26, 2014 at 10:45 AM

I used to think that slavery and institutional and government enforced racism was a bad thing. But apparently it’s not as bad as I’ve been told – it was just black people having problems buying wedding cake and hiring photographers.

gwelf on February 26, 2014 at 10:48 AM

Next year’s Oscar Award winning movie: 12 years a gay

gwelf on February 26, 2014 at 10:47 AM

And then they were freed from the ghey?

NotCoach on February 26, 2014 at 10:49 AM

When you make it up as you go along, sometimes you’ll sound like a dope. Take Eric Holder for example.

Akzed on February 26, 2014 at 10:50 AM

Next year’s Oscar Award winning movie: 12 years a gay

gwelf on February 26, 2014 at 10:47 AM

And then they were freed from the ghey?

NotCoach on February 26, 2014 at 10:49 AM

The script is still being worked on.

They’re not sure if they’re going to loosly base it on Bill DeBlasio’s wife who WAS gay.

Or if they’ll change the title to “12 years in the closet”.

gwelf on February 26, 2014 at 10:51 AM

OT, or not, speaking of thugs, literal darkness.

Schadenfreude on February 26, 2014 at 10:52 AM

The black Pastors group called him a “dangerous ideologue”…called for his impeachment…

d1carter on February 26, 2014 at 10:52 AM

when was a gay owned, mistreated, exploited, bought and sold by a master?

Schadenfreude on February 26, 2014 at 10:45 AM

Last week in San Francisco. But they like it so it’s cool.

HotAirian on February 26, 2014 at 10:52 AM

Next year’s Oscar Award winning movie: 12 years a gay

gwelf on February 26, 2014 at 10:47 AM

Oprah Winfrey will play for real.

Schadenfreude on February 26, 2014 at 10:53 AM

We need to overthrow this Regime so we can have a Republic again.

I foresee Ukraine in our future unless Obama and his minions obey the law!

ConstantineXI on February 26, 2014 at 10:54 AM

Oprah Winfrey will play for real.

Schadenfreude on February 26, 2014 at 10:53 AM

Ha ha ha.

Then there’d be no way the Oscar’s would snub her.

gwelf on February 26, 2014 at 10:56 AM

Call it the Kathleen Kane principle.
Kane, PA’s A.G., isn’t defending PA’s one man, one woman law. The governor’s attorneys are.
BTW (as if it needed to be said), Kane is a Dem.

either orr on February 26, 2014 at 10:56 AM

If that’s the case, then why should AGs get let off the hook from doing their jobs defending laws they don’t personally like, too, especially when the “client” is the democratic process that produced them?

Because I said so, now shut up Morrissey!

Sincerely,
Eric Holder

Flora Duh on February 26, 2014 at 10:56 AM

The Rule Of Law is so passe. It’s just something that old, dead white men thought up to keep the brothers down. In the American Socialist Superstate – gem of the third world – there is no rule of Law like whitey tries to force on people, just empathy and whim and whatever other emotion happens to hit your local dictator at the moment.

As I have been saying, there is no solution to this insanity but a national divorce. These lowlife dirtbags are not compatible with any sort of civilized society and decent people cannot afford, nor deserve, to have to live with them. Let them have their beloved hellholes of chaos and ineptitude … They should suffer the consequences of their demented, backward personalities and twisted minds but the rest of us deserve to be free of this third world rif-raf.

ThePrimordialOrderedPair on February 26, 2014 at 10:56 AM

“MAKELet them eat bake cakes”

Schadenfreude on February 26, 2014 at 10:46 AM

Fixed.

ConstantineXI on February 26, 2014 at 10:58 AM

Stupid Colmes just compared teh gayness to slavery.

Fools of HA, those who claim the same, when was a gay owned, mistreated, exploited, bought and sold by a master?

Schadenfreude on February 26, 2014 at 10:45 AM

If you exclude the “sold” I would say that Democrats “Own” the activist wing at the very least. They certainly “mistreat” and “exploit” them when convenient.

As far as “Master”? What are they going to do, vote Republican?

Mord on February 26, 2014 at 11:00 AM

“MAKELet them eat bake cakes”

Schadenfreude on February 26, 2014 at 10:46 AM

Fixed.

ConstantineXI on February 26, 2014 at 10:58 AM

When you fix things, fix ‘em good :)

Schadenfreude on February 26, 2014 at 11:03 AM

Utah DID get outside counsel to run their appeal to the 10th circuit. They found a very, very good appellate lawyer out of DC who was willing to step down from his partnership(!) in a large law firm to handle the case, all the way to the Supremes.

The gay lobby, naturally, hates it. But then, what don’t they hate?

I found out for the first time last night that the Church of England is being sued by a gay “husband and husband” in order to force the Church to marry them. Just as has been predicted. They filed in August 2013. Funny, I hadn’t heard about this case. For some reason the media isn’t eager to talk about it. I wonder why? (link to story here –note, it’s to a gay friendly website, so be warned.}

It’s the two most prominent gays in England, too. We still have the 1st Amendment here, but all it takes is one judge and one gay person, and you can wave goodbye to religious freedom here. The argument is that they are faithful Christians and therefore the Church is discriminating against them, blah blah.

It is certainly coming here.

Vanceone on February 26, 2014 at 11:06 AM

Still technically true … and technically dumb.

And comfortably numb.

davidk on February 26, 2014 at 11:12 AM

“MAKELet them eat bake cakes”

Schadenfreude on February 26, 2014 at 10:46 AM

Fixed.

ConstantineXI on February 26, 2014 at 10:58 AM

When you fix things, fix ‘em good :)

Schadenfreude on February 26, 2014 at 11:03 AM

http://www.firstthings.com/web-exclusives/2014/02/jesus-might-bake-the-cake-but-would-he-perform-the-nuptials

davidk on February 26, 2014 at 11:12 AM

Who does Obama pardon first; Holder or himself?

NotCoach on February 26, 2014 at 10:45 AM

I bet Holder already has his signed, sealed and delivered.

cptacek on February 26, 2014 at 11:14 AM

A pox on everyone who voted fir this clown to the the AG. A pox on Obama for not firing him.

neyney on February 26, 2014 at 11:15 AM

The black Pastors group called him a “dangerous ideologue”…called for his impeachment…

d1carter on February 26, 2014 at 10:52 AM

And I don’t think I’m going out on much of a limb when I hypothesize that the vast majority of them voted for his boss.

Fools, they are. Fools.

xNavigator on February 26, 2014 at 11:16 AM

Next year’s Oscar Award winning movie: 12 years a gay

gwelf on February 26, 2014 at 10:47 AM

Fifty Shades of Teh Ghey?

davidk on February 26, 2014 at 11:16 AM

We need to overthrow this Regime so we can have a Republic again.

I foresee Ukraine in our future unless Obama and his minions obey the law!

ConstantineXI on February 26, 2014 at 10:54 AM

The one good thing about the military drawn-down Hagal is talking about is that there will be that many more patriots on the line when the SHTF.

davidk on February 26, 2014 at 11:19 AM

I used to think that slavery and institutional and government enforced racism was a bad thing. But apparently it’s not as bad as I’ve been told – it was just black people having problems buying wedding cake and hiring photographers.

gwelf on February 26, 2014 at 10:48 AM

Heh.

davidk on February 26, 2014 at 11:22 AM

Dumb and Dumberer

GrayDog on February 26, 2014 at 11:23 AM

The one good thing about the military drawn-down Hagal is talking about is that there will be that many more patriots on the line when the SHTF.

davidk on February 26, 2014 at 11:19 AM

That is my take as well. Obama is nothing but an instrument of Soros. Soros’s lifelong goal has been to take down the United States. He’s in his 80′s and his appointment with Hell is coming soon.

That’s why Obama is pushing MUCH too far, MUCH too fast. The main reason why he’s getting away with it so far is that both the People and our Institutions are STUNNED. This is the thing that used to be conspiracy nut theory, not REALITY IN OUR FACE. This period of stunned numbness isn’t going to last much longer, ESPECIALLY as the economy, which never really recovered from 2008 anyway heads even deeper into the Abyss.

To truly purge the military of those not Absolutely Loyal to the State instead of their Oath would require a generation, not 5 years. These good men, officers, NCO’s, etc are still with us (clearly) and are still of military service age. This means they are still available, still trained, and still loyal to their Oaths.

When the reaction to Obama’s coup comes, (and I think it’s coming soon) it’s going to strike him like LIGHTENING.

ConstantineXI on February 26, 2014 at 11:28 AM

I thought these people took an oath to uphold the Constitution. By proxy is sufficient?

Cindy Munford on February 26, 2014 at 11:28 AM

That’s what I’m saying KA 2 10:44……

Crickets…… until it is a law that a gop ag says I’m not going to defend that a lefty wants enforced

cmsinaz on February 26, 2014 at 11:31 AM

The one good thing about the military drawn-down Hagal is talking about is that there will be that many more patriots on the line when the SHTF.

davidk on February 26, 2014 at 11:19 AM

That is my take as well. Obama is nothing but an instrument of Soros. Soros’s lifelong goal has been to take down the United States. He’s in his 80′s and his appointment with Hell is coming soon.

That’s why Obama is pushing MUCH too far, MUCH too fast. The main reason why he’s getting away with it so far is that both the People and our Institutions are STUNNED. This is the thing that used to be conspiracy nut theory, not REALITY IN OUR FACE. This period of stunned numbness isn’t going to last much longer, ESPECIALLY as the economy, which never really recovered from 2008 anyway heads even deeper into the Abyss.

To truly purge the military of those not Absolutely Loyal to the State instead of their Oath would require a generation, not 5 years. These good men, officers, NCO’s, etc are still with us (clearly) and are still of military service age. This means they are still available, still trained, and still loyal to their Oaths.

When the reaction to Obama’s coup comes, (and I think it’s coming soon) it’s going to strike him like LIGHTENING.

ConstantineXI on February 26, 2014 at 11:28 AM

Obama tried to intimidate Governors by politicizing the National Guard.

http://therightscoop.com/rick-perry-i-was-troubled-today-by-the-tone-of-the-president/

It’s good to be king.

workingclass artist on February 26, 2014 at 11:35 AM

Now Holder is telling AGs that they can wash their hands of these cases — and stick voters with the bill for a private defense.

Of course. When don’t the Dems use taxpayer money to bolster the Lawyer Lobby? Just look at all the ‘outsidehouse’ lawyers that became multi-millionaires in the various states’ suit against Big Tobacco.

ZeusGoose on February 26, 2014 at 11:38 AM

Obama tried to intimidate Governors by politicizing the National Guard.

http://therightscoop.com/rick-perry-i-was-troubled-today-by-the-tone-of-the-president/

It’s good to be king.

workingclass artist on February 26, 2014 at 11:35 AM

I don’t think this rule by intimidation is going to last much longer either. Like I said, he’s getting away with it right now because THE SYSTEM IS IN SHOCK. We’ve never had a President like this. EVER. Not even Wilson and FDR. Lincoln had a Civil War to use as an excuse.

First off, Obama has no authority over the National Guard whatsoever (unless he requests them and the Governor grants it). Secondly, how intimidating can a man you know you could lay out with one good punch be?

ConstantineXI on February 26, 2014 at 11:44 AM

The biggest myth is that California did not defend prop8. They did. They lost. They just decided not to appeal the ruling. The kind of allocation of resources question that AGs have to make every day.

DaveO on February 26, 2014 at 11:53 AM

When Obama and Holder make their legal “theories” the servants of Obama’s political agenda, incoherence and lawlessness necessarily result.

Eric Holder is unquestionably the most incompetent, corrupt and politically partisan tool ever to disgrace the office of the Attorney General. He’s an embarrassment and a disgrace to the entire nation.

novaculus on February 26, 2014 at 11:54 AM

OT or not

Schadenfreude on February 26, 2014 at 12:01 PM

The biggest myth is that California did not defend prop8. They did. They lost. They just decided not to appeal the ruling. The kind of allocation of resources question that AGs have to make every day.

DaveO on February 26, 2014 at 11:53 AM

That’s sort of like saying the Sun is a myth.

Brown declined to defend Porp. 8 from the get-go, as did Schwarzenegger. It was outside groups that defended the proposition during the trial, these same groups that were later found to not have standing by SCOTUS, thus leaving Prop. 8 in limbo currently.

Question: Criminal ignorance, or bald faced liar?

NotCoach on February 26, 2014 at 12:15 PM

If a state attorney general does not “uphold and defend the constitution and laws of your state” the attorney needs to fired/impeached, which ever is appropriate for that state, to dismiss the attorney.

TerryW on February 26, 2014 at 12:30 PM

So, going by The Holder Doctrine, does that mean that a Pro-Life President, Governor, etc, can ignore laws that allow abortion, refuse to license clinics, throw abortionists in jail as if they made a anti muslim video or something?

ConstantineXI on February 26, 2014 at 12:38 PM

So, going by The Holder Doctrine, does that mean that a Pro-Life President, Governor, etc, can ignore laws that allow abortion, refuse to license clinics, throw abortionists in jail as if they made a anti muslim video or something?

ConstantineXI on February 26, 2014 at 12:38 PM

This only applies to progressive policies.

cptacek on February 26, 2014 at 12:50 PM

Can I go to a gay baker and ask him to bake a cake the has the Bible verse condemning homosexuality?

uncle jj on February 26, 2014 at 12:55 PM

Next year’s designer PC legislation: Gay Affirmative Action.

oldroy on February 26, 2014 at 10:48 AM

Yes, because Black AA was so successful!

slickwillie2001 on February 26, 2014 at 1:10 PM

If POTUS and Attorney General, State AG, etc. can refuse to enforce the law are there laws they must enforce? Can they decide not to enforce the law for bank robbery etc?

Herb on February 26, 2014 at 1:18 PM

If POTUS and Attorney General, State AG, etc. can refuse to enforce the law are there laws they must enforce? Can they decide not to enforce the law for bank robbery etc?
Herb on February 26, 2014 at 1:18 PM

Sure, for the right bribe Campaign Contribution.

ConstantineXI on February 26, 2014 at 1:22 PM

Bwahahahahaha..

so Holder thinks it’s okey dokey for people that are elected to do a job…just pay (with tax payer money) someone else to do the job.

ya can’t make this chit up.

roflmmfao

donabernathy on February 26, 2014 at 1:43 PM