Six state attorneys general, all Democrats, have refused to defend bans on gay marriage. That has prompted criticisms from Republicans who say the AGs have a duty to stand behind their state laws, whether or not they agree with them.
The controversy parallels what occurred at the federal level when the President Obama instructed the U.S. Department of Justice not to defend the Defense of Marriage Act (DOMA) that had been passed by Congress and signed by President Clinton in 1996. Some Republicans have argued that that action, plus not only his unilateral suspension of provisions of immigration law, but his signature legislative achievement, the ObamaCare health insurance law, constitute impeachable offenses by the president.
The Defense of Marriage Act, which said the federal government would recognize only heterosexual marriages, was struck down by the U.S. Supreme Court last year in United States v. Windsor, a suit brought by a New York woman prevented by DOMA from claiming a surviving spouse exemption on the tax on her inheritance from her deceased female partner, whom she had married in Canada. New York had legalized same-sex marriage by the time the case reached the Supreme Court.
The court also ruled that a citizens' group from California, attempting to overturn a federal judge's ruling against that state's constitutional ban on same-sex marriage, lacked the legal standing needed to defend the law after the state's attorney general refused to do so.
Holder said Monday the decision should not be made on personal political or policy preferences, but that laws impinging on the constitutional guarantee of equal protection of the laws should be examined closely by attorneys general in determining whether they should defend them in court. "Engaging in that process and making that determination is something that's appropriate for an attorney general to do," Holder said.
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Photo of Eric Holder: AP Images