WASHINGTON – Attorney General Eric Holder said Monday that state attorneys general who believe that laws in their states banning same-sex marriage are discriminatory are not obligated to defend them. For an example, he cited the 1954 Brown v. Board of Education case that led to public school integration.
“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,” Holder said in an interview with the New York Times.
Holder said an attorney general should apply the highest level of scrutiny before reaching a decision on whether to defend laws that touch on core constitutional issues like equal protection. 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,” Holder told the Times for a story that appeared on its website late Monday.
Holder was scheduled to address the winter meeting of the National Association of Attorneys General today.
Democratic attorneys general in five states – Virginia, Pennsylvania, California, Illinois and Nevada – have declined to defend same-sex marriage bans against lawsuits filed by gay couples. New Mexico’s attorney general, also a Democrat, has challenged long-standing legal interpretations that said such unions were impermissible there.
Republicans have criticized the view that attorneys general can choose not to defend state laws.
The Times reported that Holder was careful not to encourage state attorneys general to disavow their own laws. Holder himself refused to defend the federal Defense of Marriage Act in 2011, which helped lead to last year’s Supreme Court decision striking down a key part of the Defense of Marriage Act that denied gay married couples the federal benefits and privileges enjoyed by heterosexual couples.
The attorney general has been outspoken on issues he sees as highlighting flaws in the criminal justice system that have a disparate impact on minorities. Earlier this month he called on 11 states to restore voting rights to ex-felons, arguing that laws that permanently disenfranchise people who are no longer under federal or state supervision should be reconsidered.
Holder has urged the nation’s schools to abandon disciplinary policies that send students to court instead of the principal’s office, citing cases in which black students were disciplined more harshly and more frequently than whites.
In addition, he has instructed federal prosecutors to stop charging many nonviolent drug defendants with offenses that carry mandatory minimum sentences, saying that long mandatory terms have flooded the nation’s prisons with low-level drug offenders and diverted money away from crime fighting.