No need to defend gay marriage bans, says U.S. Attorney General Eric Holder

WASHINGTON (AP) -- President Barack Obama's top law enforcement official told his state counterparts Tuesday they are not obligated to defend local laws banning same-sex marriage if they violate the U.S. Constitution, adding the administration's powerful voice to the gay rights debate.

Attorney General Eric Holder spoke out as emboldened gay rights advocates across the country are challenging voter-approved bans in dozens of states.

Holder cited his own experience in refusing to defend the federal Defense of Marriage Act, which helped lead to last year's landmark U.S. Supreme Court decision striking down a key part of the law that denied same-sex married couples the federal benefits and rights enjoyed by heterosexual couples. The ruling precipitated a wave of lawsuits, and marriage-equality cases are now active in 24 of the 33 states that do not allow same-sex marriage.

Holder cited similar stances taken more recently by state attorneys general who refused to defend bans in their states, saying that laws that discriminate based on sexual orientation should be given close attention and greeted with suspicion.

Holder said a decision not to defend a ban on same-sex marriage must not be made lightly. But he said it's imperative to uphold the values enshrined in the Constitution, "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 said at a meeting of the top law enforcers' national association. His own view, he said, is that "we must be suspicious of legal classifications based solely on sexual orientation."

The issue has been divisive at the state level, with some attorneys general declining to defend same-sex marriage bans when challenged in court. Others have stated publicly that they are sworn to uphold laws in the state, whether or not they agree with them.

Democratic attorneys general in at least 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.

At least 17 states, mostly in the Northeast, and the Washington capital district now allow marriage of same-sex couples.

Holder's remarks follow a Justice Department announcement that same-sex spouses -- like heterosexual ones -- 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.

J.B. Van Hollen, the Republican attorney general of Wisconsin and president of the attorney generals association, disagreed with Holder, saying the job of an attorney general is to uphold, not challenge, a state's constitution.

In some states, such as Michigan, attorneys general are defending gay marriage bans.

A trial is underway in the state, where two Detroit-area nurses who together are raising three adopted children are seeking to overturn a 2004 Michigan constitutional amendment that recognizes marriage as only between a man and a woman. The two women plaintiffs claim the amendment violates their rights under the Equal Protection Clause of the U.S. Constitution.

The couple's attorney said she would present evidence to show there's no rational basis to single out gays and lesbians who want to marry -- a key legal standard in the case.

To nullify the ban, a judge would have to find that it's "inconsequential" to have children raised by a man and a woman, Assistant Attorney General Kristin Heyse said in her opening remarks.

"This court should not be rushed to embrace a position that mothers and fathers are interchangeable," she said.

It's the first U.S. trial over a gay-marriage ban since a California trial in 2010, although federal judges in other ways recently have struck down similar bans in Utah, Oklahoma and Virginia, traditionally conservative states. Opponents of the bans hope the cases will eventually be decided by the U.S. Supreme Court.

Less than two weeks after a federal judge made Virginia the first state in the Southeast to see its voter-approved ban overturned, a new campaign seeks to build wider acceptance of gay and lesbian couples in hopes of overturning similar bans across the region. A day before the Feb. 13 ruling, a federal judge in neighboring Kentucky ruled that state must recognize same-sex marriages performed in other states. Georgia and the 13 other states targeted in the campaign all have either a constitutional or statutory provision defining marriage as between a man and a woman.

Across the country in Arizona, the Republican governor is expected to spend the next day or more deciding whether to sign or veto legislation that allows businesses whose owners cite religious beliefs to deny service to gays. The bill, which allows any business, church or person to cite the law as a defense in any action brought by the government or individual claiming discrimination, has ignited a firestorm.

There is widespread speculation that Gov. Jan Brewer will veto the bill, amid mounting opposition from businesses, politicians of all stripes and civil rights groups. Some Republican senators who pushed the bill through the state Legislature have since backtracked, and are now calling for a veto.

Similar religious protection legislation has been introduced in several states, but Arizona's plan is the only one that was passed by a state legislature.


Associated Press writers Eric Tucker in Washington, Ed White in Detroit and Bob Christie in Phoenix contributed to this report.

Published: Thu, Feb 27, 2014