The same-sex marriage debate continues to rattle states like Texas, Kentucky, Utah and Nevada, among others. The states’ bans on same-sex marriage are being overturned, then appealed, overruled, questioned, investigated (or some combination thereof) in the nationwide attempt to sort out how the U.S. will go forward in defining marriage. But recently, the ears of attorneys in Las Vegas perked when they heard the statements made by the U.S. Attorney General about the room for personal belief in states’ attorneys general’s decisions on the matter as reported by the Las Vegas Review Journal.
While attorneys general are in the position to defend the state from litigation, U.S. Attorney General Eric Holder said that they are not obligated to defend laws that they believe to be discriminatory, and cited the landmark 1954 Brown v. Board of Education case as an example. To date, Democratic attorneys in Virginia, Pennsylvania, California, Illinois and Nevada have declined to defend same-sex marriage bans against lawsuits filed by gay couples, and New Mexico’s AG has also challenged legal interpretations in his state that denied same-sex unions. When Nevada’s AG recently announced that she won’t try to defend Nevada’s law banning same-sex marriages, attorneys in Las Vegas were confronted with some of the complexities in the legal obligations and personal beliefs operating at the state level.
Luckily, Catherine Cortez Masto has the support of Nevada’s governor, Brian Sandoval, who agrees that the law is “no longer defensible in court.” But others aren’t feeling as friendly. Republicans are loudly criticizing the view that attorneys general can choose not to defend state laws, and accuse such parties of political motivations that undermine their position.
Holder’s remarks tell another story, though. “If I were an attorney general in Kansas in 1953, I would not have defended a Kansas statute that put in place separate-but-equal facilities,” he told the New York Times. Attorneys in Las Vegas and elsewhere who are weighing their conscience against legal obligations should pay attention to Holder’s cautions. Before making such a decision, attorneys general should apply the highest level of scrutiny, especially on issues that touch on “core constitutional issues like equal protection,” and insists that the decision should never be political or based on policy objections. Holder himself refused to defend the federal Defense of Marriage Act in 2011 and his refusal to defend the law had a large part in the portion that denied same-sex marriages federal benefits being struck.
Attorneys in Las Vegas should note that the AG has been outspoken on issues that he believes in – such as using his position to highlight flaws in the criminal justice system that have a disparate impact on minorities, and mandatory minimum sentences for nonviolent drug offenses that flood the nation’s prisons with low-level drug offenders and divert money from fighting crime and keeping communities safer (2.24). Holder means what he says, and one of the things he is promoting is that attorneys can be advocates for their beliefs in rights and liberties, too.