Attorney General Holder Tells State Attorneys General they do NOT have to Defend their State’s Ban on Same Sex Marriage

Monday night, Attorney General Eric Holder declared in an interview that State Attorneys General can refuse to defend same sex marriage bans upon a careful review of the law and application of strict scrutiny. Holder sees the issue as a constitutional one and compared it to Brown v. Board of Education, the 1954 case which integrated public schools. (See the article here.)

Although his statements do not directly impact state laws which currently ban same sex marriage, supporters see this as a bold declaration which signifies one more step towards marriage equality. Some State Attorneys General have already taken this stance and have openly refused to defend bans on same sex marriage. One of these is State Attorney General Mark Herring, who decided not to defend Virginia’s ban on same sex marriage in court. A group is now trying to get Attorney General Herring impeached.  (See article here.)

The efforts against Herring, mirror the opinion of several opponents to Holder’s comments on Monday, who believe that State Attorneys General must defend the laws of their state despite their personal opinion. On the other hand, would cases like Brown v. Board of Education have turned out the way they did if State Attorneys General defended their laws regardless of what they were? Or is the ultimate objective to defend the states’ constitutions no matter what they represent?

Author’s Note: Today, Wednesday 2/26/14, a Texas federal judge struck down Texas’ ban on same-sex marriage despite opposition from Texas’ Attorney General. (See article here)