Updated: 1:00 p.m. EST (Feb. 25, 2014)
WASHINGTON — State attorneys general are not obligated to defend laws in their states banning same-sex marriage if the laws discriminate in a way forbidden by the Constitution, U.S. Attorney General Eric Holder told his state counterparts Tuesday.
Holder cited his own experience in refusing to defend the federal Defense of Marriage Act, as well as similar stances taken more recently by state attorneys general, in saying that laws raising questions of equal protection deserve a higher level of scrutiny. Any refusal to defend a state law must not be made lightly, he said, but it’s imperative to uphold the values “that all are created equal and entitled to equal opportunity.”
“Any decisions — at any level — not to defend individual laws must be exceedingly rare,” Holder told state attorneys general at a meeting of their national association. “And they must never stem merely from policy or political disagreements — hinging instead on firm constitutional grounds.”
His own view, he said, is that “we must be suspicious of legal classifications based solely on sexual orientation.”
The remarks come weeks after the Justice Department announced that same-sex spouses cannot be compelled to testify against each other, should be eligible to file for bankruptcy jointly and are entitled to the same rights and privileges as federal prison inmates in opposite-sex marriages.
Democratic attorneys general in six states — Virginia, Pennsylvania, California, Illinois, Oregon and Nevada — have declined to defend same-sex marriage bans that have been challenged in court by gay couples.
“Our actions were motivated by the strong belief that all measures that distinguish among people based on their sexual orientation must be subjected to a heightened standard of scrutiny — and, therefore, that this measure was unconstitutional discrimination,” Holder said.
Mississippi Attorney General Jim Hood said he respected that Holder “approached it in a mindset that reasonable legal minds can disagree on an issue, as to how we approach it.”
Hood said he has not yet been asked to defend his state’s ban on same-sex marriage, but has been watching the court fights in other states.
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