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Attorney General Eric Holder: Discriminatory laws including state DOMAs don't need defending

ASSOCIATED PRESS

WASHINGTON -- Attorney General Eric Holder said Monday that state attorneys general who believe that laws in their states banning same-sex marriage are discriminatory are not obligated to defend them. For an example, he cited the 1954 Brown v. Board of Education case that led to public school integration.

"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 said in an interview with The New York Times.

Holder said an attorney general should apply the highest level of scrutiny before reaching a decision on whether to defend laws that touch on core constitutional issues like equal protection. He said the decision should never be political or based on policy objections.

"Engaging in that process and making that determination is something that's appropriate for an attorney general to do," Holder told the Times for a story that appeared on its website late Monday.

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Here are Holder's remarks about gay marriage, as supplied by the White House:

These are the questions that drove President Obama and me to decide, in early 2011, that Justice Department attorneys would no longer defend the constitutionality of Section 3 of the Defense of Marriage Act.  As I’ve said before, this decision was not taken lightly.  Our actions were motivated by the strong belief that all measures that distinguish among people based on their sexual orientation must be subjected to a heightened standard of scrutiny – and, therefore, that this measure was unconstitutional discrimination.  Last summer, the Supreme Court issued a historic decision – United States v. Windsor – striking down the federal government’s ban on recognizing gay and lesbian couples who are legally married.  This marked a critical step forward, and a resounding victory for equal treatment and equal protection under the law.
 
More recently – and partly in response to the Windsor decision – a number of state attorneys general, including those in Pennsylvania, Nevada, Virginia – and, just last week, Oregon – have reached similar determinations after applying heightened scrutiny to laws in their states concerning same-sex marriage.
 
Any decisions – at any level – not to defend individual laws must be exceedingly rare.  They must be reserved only for exceptional circumstances.  And they must never stem merely from policy or political disagreements – hinging instead on firm constitutional grounds.  But in general, I believe we must be suspicious of legal classifications based solely on sexual orientation.  And 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.
 
This bedrock principle is immutable.  It is timeless.  And it goes to the very heart of what this country has always stood for – even though, as centuries of advancement in the cause of civil rights have shown, our understanding of it evolves over time.  As I said just after the Administration’s decision on DOMA was announced, America’s most treasured ideals were not put into action or given the full force of law in a single instant.  On the contrary: 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.
 
As we gather here in Washington today, I believe that our highest ideals – realized in the form of landmark Supreme Court rulings, from Brown to Zablocki, from Romer to Lawrence, from Loving to Windsor – light a clear path forward.  They have impelled us, in some instances, to extraordinary action.  And the progress we’ve seen has been consistent with the finest traditions of our legal system, the central tenets of our Constitution, and the “fundamental truth” that, as President Obama once said, “when all Americans are treated as equal . . . we are all more free.”

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