As reported by Fox News, Attorney General Eric Holder has given the nod to his state counterparts that they do not have to defend laws against constitutional court challenges if they consider them discriminatory — effectively giving the green light for states to stop defending bans on gay marriage.
Ed Whelan, president of the Ethics and Public Policy Center, former law clerk for Justice Antonin Scalia, former counsel to the Senate Judiciary Committee said, “When there are non-frivolous grounds for doing so, a state attorney general has a fundamental ethical duty as a lawyer to defend state laws against attacks under federal law. That standard means that state attorneys general are obligated to defend state marriage laws. It’s unfortunate and outrageous that Attorney General Holder doesn’t understand that, but it’s hardly surprising. Holder, after all, departed from DOJ’s longstanding practices when he refused to defend DOMA, and he has routinely indulged his political preferences at the expense of the rule of law.”
Carrie Severino, chief counsel to the Judicial Crisis Network, former law clerk for Justice Clarence Thomas agreed, saying, “Eric Holder apparently isn’t satisfied with refusing to carry out his own oath to defend the constitution: he wants to see state attorneys general do the same. But in a country under the rule of law, the executive doesn’t have free rein to declare laws unconstitutional by default. Attorneys general should provide the same zealous defense to their clients that all lawyers do. That means they defend their client even if they disagree, unless there is no viable argument to be made. Hotly-debated political issues like the redefinition of marriage are precisely the type of thing that must be left to the voters state by state, not by the fiat of a single state officer.”
John Eastman, Henry Salvatori Professor of Law & Community Service, Dale E. Fowler School of Law at Chapman University and chairman of the National Organization for Marriage echoed a similar tone, “Not only was the Attorney General derelict in his duty when refusing to defend DOMA, now he is encouraging state AGs to be derelict in their duties in defending state law defining marriage as between a man and a women. The is not just reckless, but lawless. The Supreme Court just last June based its DOMA decision on the fact that states have the primary authority to determine marriage policy, and issued a ruling over 40 years ago upholding a one-man/one-woman state marriage law against the identical challenge being pressed now. Historically, AGs of both political parties have determined they had a duty to defend statutes, even statutes they don’t like, unless there was no plausible argument to be made in defense. To stand on that ground in the context of defending marriage, an institution as old as time itself, is both bizarre and preposterous. The Attorney General should find a job he’s actually willing to do.”
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