Eric Holder: State attorneys general are not obligated to defend discriminatory laws

"I would not have defended a Kansas statute that put in place separate-but-equal facilities," Holder said

By Katie McDonough
February 25, 2014 7:12PM (UTC)
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Attorney General Eric Holder (AP/J. Scott Applewhite)

Attorney General Eric Holder said in an interview this week that he believes state attorneys general are not obligated to defend laws that they believe are discriminatory, and that officials could refuse to defend state bans on equal marriage for this reason.

As the New York Times notes, Holder did not advocate an arbitrary standard for defending state laws, but said that when laws touch on constitutional issues like equal protection, officials have a responsibility to apply scrutiny.


“Engaging in that process and making that determination is something that’s appropriate for an attorney general to do,” Holder told the Times. “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."

Six Democratic attorneys general have already refused to defend state bans on marriage equality.

More from the Times:


“The answers to these questions are crystal clear,” said Gary Buseck, legal director of Gay and Lesbian Advocates and Defenders. “Attorneys general can’t close their eyes to something that’s blatantly unconstitutional. They’re not supposed to defend the laws at all costs.”

In Arizona this week, Gov. Jan Brewer, a Republican, must decide whether to sign legislation that would allow business owners to deny service to same-sex couples. Asked in the interview about the legislation, Mr. Holder said he had not reviewed that bill and had no view on whether it was constitutional.

But he said he was certain that, if signed into law, it would face swift legal challenges. And the state’s attorney general would have to decide whether to defend it.

Holder's comments have been criticized by some Republican attorneys general, who have also been critical of the six officials who have refused to defend marriage equality bans.

“It really isn’t his job to give us advice on defending our constitutions any more than it’s our role to give him advice on how to do his job,” Wisconsin Attorney General J. B. Van Hollen told the Times. “We are the ultimate defenders of our state constitutions.”

Katie McDonough

Katie McDonough is Salon's politics writer, focusing on gender, sexuality and reproductive justice. Follow her on Twitter @kmcdonovgh or email her at

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