by Neil Munro
Mainstream and conservative lawyers are slamming Attorney General Eric Holder’s call for state law enforcement officers to ignore state constitutions’ marriage rules.
Holder’s claim is bizarre, preposterous, unprecedented, lawless and political, his critics say.
Holder claimed that the new idea of same-sex marriage is so obviously constitutional that state attorneys general should consider not defending amendments in state constitutions that define marriage traditionally.
Throughout the country, advocates for gay rights are suing state governments to redefine marriage as an amenity for adults, not as an evolved institution that binds parents to their kids.
“Engaging in that process and making that determination is something that’s appropriate for an attorney general to do,” Mr. Holder told the New York Times Monday.
“This administration is repeatedly ignoring the rule of law,” said a statement from Alan Wilson, the chairman of the Republican Attorneys General Association. “We’re seeing the same thing happen with Obamacare as the Obama administration continues to pick and choose which parts of the law they will enforce and which they will delay without legislative action.”
“Our freedom depends on upholding the rule of law and obtaining the consent of the governed,” Wilson said.
Already, six Democratic attorneys general have refused to defend marriage rules that have been inserted into state constitutions by voters.
But Holder argues that same-sex marriage is so obviously unconstitutional that AGs should refuse the defend marriage laws unless they’re redefined to include gay couples.
His claim is part of a larger push to raise the social status of homosexuality, and to make it equally respected as baby-making heterosexuality. In a Feb. 4 speech in Sweden, for example, he declared that ”the fundamental truth [is] that no matter where you live, who you love, or who you are … every human being is, and must be, free and equal in both dignity and [legal] rights,” he declared.
The Democrats’ refusal to defend state constitutional rules on marriage helps progressive advocacy groups sway progressive judges, some of whom are eager to redefine marriage.
Conservatives say Holder’s claim is also undermined by experience and data showing that marriages are best for kids and adults.
For example, a huge 2013 Canadian study of marriage and childrearing shows that the children of lesbian and gay couples are much less likely to graduate from high school as the children of married parents. The huge study looked at roughly 20 percent of Canadian population, allowing it to find good data on hundreds of gay and lesbian couples.
The study concluded that “children of married opposite-sex families have a high graduation rate compared to the others; children of lesbian families have a very low graduation rate compared to the others; and the other four types [common law, gay, single mother, single father] are similar to each other and lie in between the married/lesbian extremes.”
The lawyers, however, focused on Holder’s unprecedented claim that AGs don’t have to defend laws they don’t like.
“A state attorney general has a solemn duty to the state and its people to defend state laws and constitutional provisions against challenge under federal law,” said Alabama Attorney General Luther Strange. “To refuse to do so because of personal policy preferences or political pressure erodes the rule of law on which all of our freedoms are founded.”
Holder’s “approach is as inappropriate, as it is unprecedented,” said Tim Fox, Montana’s attorney general.
“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,” said Carrie Severino, chief counsel to the Judicial Crisis Network, and a former law clerk for Justice Clarence Thomas.
“Under the rule of law, the executive doesn’t have free rein to declare laws unconstitutional. … They defend their [state] client even if they disagree, unless there is no viable argument to be made,” Severino said.
“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.”
“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,” said Ed Whelan, president of the Ethics and Public Policy Center.
“It’s unfortunate and outrageous that Attorney General Holder doesn’t understand that, but it’s hardly surprising,” said Whelan, who is a former law clerk for Justice Antonin Scalia, and a former counsel to the Senate Judiciary Committee. Holder “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,” he said.
Holder’s statements are “not just reckless, but lawless,” said John Eastman, a law professor at Chapman University.
Holder was “derelict in his duty when refusing to defend [the Defense of marriage Act in 2012], 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,” said John Eastman, chairman of the National Organization for Marriage.
Holder’s claim is “bizarre and preposterous,” and he “should find a job he’s actually willing to do,” Eastman said.
“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,” Eastman wrote.
“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,” he wrote.