Holder, in an interview this week with The New York Times, said state attorneys general who have carefully studied laws passed in their state that they feel may violate the constitutional right to equal protection may refuse to defend them in court.
“Engaging in that process and making that determination is something that’s appropriate for an attorney general to do,” Holder said.
His comments give cover to six state attorneys general -- all Democrats -- who had said they won't defend their states' bans on gay marriage.
As the first African American to hold the job as the nation's top lawyer, Holder has taken a stand in several cases where he considers states to be infringing on civil rights. In addition to providing strong backing for the growing number of states allowing gay marriage (and strengthening the federal stance on equal treatment of gay couples under federal law), Holder has also sued several states, including Texas and North Carolina, for voter identification laws he says disproportionally affect minority and poor voters.
But Republicans say Holder is in turn infringing on the autonomy of states to determine their own laws, and who charge state attorneys general are duty bound to stand behind the laws of their states, even if they disagree with them personally.
“It really isn’t his job to give us advice on defending our constitutions any more than it’s our role to give him advice on how to do his job,” said Attorney General J. B. Van Hollen of Wisconsin, a Republican. “We are the ultimate defenders of our state constitutions.”
“If there’s one clear-cut job I have, it’s to defend my Constitution,” Van Hollen said. “There is no one else in position to defend the State Constitution if it comes under attack.”
And in an op-ed in The Washington Post earlier this month, John W. Suthers, the Republican attorney general of Colorado, said the refusal to defend a state's laws by an attorney general constitutes a power beyond the office's authority.
"This practice corrodes our system of checks and balances, public belief in the power of democracy and ultimately the moral and legal authority on which attorneys general must depend," he wrote. "In contrast to the president or a governor, there is no constitutional authority for this litigation veto. To the contrary, it undermines many important principles of our democracy."
But in Nevada, Oregon, Pennsylvania, Virginia, California and Illinois, attorney generals who refuse to defend bans on same-sex marriage say doing so its a constitutional necessity.
[New York Times]
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