U.S. Attorney General Eric Holder: State attorneys should question laws

U.S. Attorney General Eric Holder told a group of state attorneys general Tuesday that they are not obligated to defend state same-sex marriage bans, which could have far-reaching implications.

At a meeting of the National Association of Attorneys General, Holder encouraged leading attorneys to follow the Obama administration’s example not to defend the federal Defense of Marriage Act, which was struck down in the U.S. Supreme Court last summer.

“In general, I believe we must be suspicious of legal classifications based solely on sexual orientation,” Holder said in his speech. “Our ideals are continually advanced as our justice systems — and our union — are strengthened.”

Holder pointed to state attorneys general in Pennsylvania, Nevada, Virginia and Oregon who declined to defend their state’s gay marriage bans in court, but said refusing to defend state laws should be rare and not based on political differences.

In May 2012, North Carolina passed a constitutional gay marriage ban, which N.C. Attorney General Roy Cooper, a Democrat, has said he will defend despite personal opposition.

Rob Schofield, policy director at the left-leaning N.C. Policy Watch, said Holder’s stance is “another chip” in the same-sex marriage law.

He said attorneys general squander state resources when they defend laws they believe to be unconstitutional.

But Tyler Younts, a legal policy analyst at the conservative John Locke Foundation, said Holder’s statements could set a harmful legal precedent.

“State attorneys general are basically the lawyer for the state, and to take positions against your client seems to be a conflict of interest,” Younts said.

Younts said Holder’s sentiments could also affect North Carolina’s voter identification law, which Cooper has criticized.

Mike Meno, spokesman for the state branch of the American Civil Liberties Union, said state laws facing constitutional challenges will still be defended in court, even if an attorney general refuses.

“If you look at other states, even in the cases where attorneys general decline to defend, someone still steps up to defend that law,” Meno said.

Last year, the N.C. General Assembly passed a law that would allow the state legislative leaders to challenge a state law or constitutional amendment in judicial proceedings.

Meno said the N.C. ACLU has filed lawsuits over the state’s same-sex marriage ban, restrictions on abortion and the voter ID law.

“We’re confident in securing rights for same-sex couples regardless of who’s defending,” he said.

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