As attorney general Eric Holder pushes for marriage equality, he's taking a controversial stance on the duties of his state counterparts: They don't need to defend laws they believe violate key constitutional values, he tells the New York Times. They shouldn't make their decisions based on politics, he says. But if, after thorough consideration, they see gay marriage bans as a violation of equal protection, they aren't obligated to defend the bans. "Engaging in that process and making that determination is something that’s appropriate for an attorney general to do," Holder says.
For instance, "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," he says. Today, Holder is set to speak to the National Association of Attorneys General—and its president has already taken issue with his remarks. While Holder's argument might occasionally apply to state laws, it doesn't hold water when it comes to state constitutional amendments. "If there’s one clear-cut job I have, it’s to defend my Constitution," says JB Van Hollen, Wisconsin's attorney general. But GLAAD's legal director backs Holder's opinion. "Attorneys general can’t close their eyes to something that’s blatantly unconstitutional. They’re not supposed to defend the laws at all costs."