In an interview with The New York
Times, Attorney General Eric Holder stated that state attorneys
general are not obligated to defend unconstitutional laws.
“Mr. Holder was careful not to
encourage his state counterparts to disavow their own laws, but said
that officials who have carefully studied bans on gay marriage could
refuse to defend them,” the
Times
reported on Monday.
Six Democratic state attorneys general
have already taken that step, refusing to defend such laws before
judges in cases challenging them.
“Engaging in that process and making
that determination is something that's appropriate for an attorney
general to do,” Holder said.
“If I were attorney general in Kansas
in 1953, I would not have defended a Kansas statute that put in place
separate-but-equal facilities,” Holder said, a reference to Brown
v. Board of Education, the landmark Supreme Court ruling which
found unconstitutional state laws establishing separate public
schools for black and white students.
Attorneys general in Nevada,
Pennsylvania, Virginia, California, Illinois and most recently Oregon
have refused to defend laws that prohibit gay couples from marrying.
Wisconsin Attorney General J.B. Van
Hollen, a Republican who is defending his state's ban, told the Times
that it wasn't Holder's job “to give us advice on defending our
constitutions any more that it's our role to give him advice on how
to do his job.”
“We are the ultimate defenders of our
state constitutions,” he added.
(Related: Eric
Holder: Justice to treat marriages of gay couples equally.)