Attorney General Eric Holder stunned and disappointed many conservative lawyers with his decree that state attorneys general have no obligation to defend state laws, or even state Constitutions, that define marriage as the union of one man and one woman. Many attorneys general, and certainly most Republicans, believe it is precisely their duty to defend their state's laws and constitution, whatever their personal feelings about a particular issue.
Not Holder, who told the National Association of Attorneys General in Washington on Tuesday that they have a higher mission than enforcing the law. "The essential duty to which all of us, as attorneys general, have been sworn," he said, is "not just to win cases, but to see that justice is done." State laws and constitutions that define marriage as one man and one woman are discriminatory, Holder continued, and do not deserve the attorneys generals' defense, because the AGs' duty is "not merely to use our legal system to settle disputes and punish those who have done wrong, but to answer the kinds of fundamental questions — about fairness and equality — that have always determined who we are and who we aspire to be, both as a nation and as a people."
It all sounded very high minded. But some of the attorneys general -- experienced lawyers who take their oath to defend the laws seriously -- wondered how such a higher-morality approach to the law might actually work in the marriage issue. If a law is being challenged, shouldn't there be someone to defend it?
After his speech, Holder left the room while cameras and reporters were told to leave. When all the press had been cleared, Holder returned for a question-and-answer session. Tom Horne, the attorney general of Arizona -- a man who has his hands full if there ever was one -- asked Holder a question. The adversarial system requires that in a lawsuit, two sides make their case, after which a judge makes a decision that everyone agrees to abide by. But on the marriage issue, Holder is advocating that one side not show up. It's like a basketball game, Horne said, in which just one team takes the court, scoring any time it wants.
Horne brought up the California marriage case in the Supreme Court last year. Because the attorney general of California decided not to defend the state's referendum defining marriage as the union of one man and one woman, the Supreme Court found that no one had standing to litigate the matter, and thus declined to make a decision clarifying the issue for the nation. Does Holder want that to happen again? "I asked [Holder] if he would agree that if no one else has standing, then the attorney general should make sure that someone is able to defend the case," Horne told me last night.
To the surprise of some listeners, Holder said yes — someone should defend a state's marriage laws in court, and it is the attorney general's job to make that happen. "He agreed that if there is no one else with standing to defend it, then the AG should make sure that somebody defends it," Horne said. That would mean at the very least that the state attorney general would hire a private attorney to defend the law — an option Holder approved.
So the full version of Holder's position on one-man, one-woman marriage laws is: State attorneys general should not defend them, but they should hire private lawyers who will. It was a much more nuanced opinion than what was reported in the headlines. And it left some attorneys general pretty unhappy. They have sworn to uphold the laws and constitutions of their states, and there has been no Supreme Court decision invalidating those state laws and constitutions. So they should just make a judgment on their own not to defend?
"It's troubling to have the attorney general advise you that you can ignore your oath to uphold and defend the constitution and laws of your state," said Luther Strange, the attorney general of Alabama, who was at the meeting. "We certainly don't advise him how to enforce federal laws, how to do his duty — so that was a little unusual, to say the least."
"Whether we like the laws passed by our legislature or not," Strange continued, "we have a sworn duty to uphold them unless they are clearly unconstitutional. And the issue that [Holder] raised, on same sex marriage, laws in many states are still being litigated. They haven't been finally determined. It's our obligation to defend laws until we get a final decision from the Supreme Court, or a final court, and then obey the court's direction."
But Holder has decided on his own that the state laws and constitutions violate the U.S. Constitution. It's not that the state attorneys general necessarily believe that is correct or incorrect as a matter of law. It's that they are concerned by a U.S. attorney general making the decision. "My question, and the question of a lot of AGs to him would be: Aren't you setting yourself up as the arbiter of the law?" said Strange. "We have a system that ensures that courts are the final arbiter of the law, and in a case where you have different opinions, courts are the appropriate forum. In this case, it looks like he's setting himself up to make that decision, and I think that's a very unwise precedent."