Attorney General Eric Holder testifies during a hearing of the Senate Judiciary Committee
Luke Sharrett/The New York Times/Redux

Holder urges states not to defend gay marriage bans


Attorney General Eric Holder urged a gathering of state attorneys general Tuesday in Washington not to defend state bans on same-sex marriage.

“We must endeavor – in all of our efforts – to uphold and advance the values that once led our forebears to declare unequivocally that all are created equal and entitled to equal opportunity,” Holder said. “Our ideals are continually advanced as our justice systems – and our Union – are strengthened; and as social science, human experience, legislation, and judicial decisions expand the circle of those who are entitled to the protections and rights enumerated by the Constitution.”

Holder said that the decision not to defend a law should be “exceedingly rare” and “reserved only for exceptional circumstances” where doing so can be justified on “firm constitutional grounds,” and “must never stem merely from policy or political disagreements.”

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Holder caused an uproar in 2011 when he announced that the Obama administration believed the Defense of Marriage Act, which prevented the federal government from recognizing same-sex marriages even from states where they were legal, was unconstitutional and the administration would no longer defend it. The Supreme Court later struck down the law, and since then, judges from Utah to Virginia have ruled state bans on same-sex marriage unconstitutional, citing the justices’ legal reasoning. State attorneys general in Pennsylvania, Oregon, Virginia, and Nevada have followed Holder’s lead, declining to defend their state bans on same-sex marriage because they believe them to be unconstitutional.

Holder’s remarks come as an increasing number of Republican-controlled state legislatures are considering laws that would sanction discrimination against same-sex couples based on religious objections to homosexuality. Those Republican state lawmakers–and a number of those in Washington–would probably take exception to the argument that bans on same-sex marriage are outside the realm of disagreement over politics and policy.

In an earlier interview with the New York Times published Tuesday, Holder had been even more blunt, analogizing same-sex marriage bans to Jim Crow laws mandating racial segregation.

“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 told the Times.


Holder urges states not to defend gay marriage bans