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Eric Holder’s Law

When President Obama refused to endorse same sex marriage in the 2008 presidential campaign, was he as bigoted as a defender of Jim Crow in 1948, six years before “separate but equal” was struck down by a unanimous Supreme Court?

That’s what Attorney General Eric Holder would have you believe based on his remarks about same sex marriage on Monday.

From The New York Times’ account of an interview with the Attorney General:

Attorney General Eric H. Holder Jr. on Monday injected the Obama administration into the emotional and politicized debate over the future of state same-sex marriage bans, declaring in an interview that state attorneys general are not obligated to defend laws that they believe are discriminatory….

Mr. Holder said when laws touch on core constitutional issues like equal protection, an attorney general should apply the highest level of scrutiny before reaching a decision on whether to defend it. 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,” Mr. Holder said.

As an example, Mr. Holder cited the landmark Brown v. Board of Education case, which forced public school integration in 1954.

“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,” Mr. Holder said.

The nation’s first black attorney general, Mr. Holder has said he views today’s gay-rights campaigns as a continuation of the civil rights movement that won rights for black Americans in the 1950s and ’60s. He has called gay rights one of “the defining civil rights challenges of our time.”

This is astonishing and troubling, and of a piece with the president and the Administration’s growing lawlessness. There is no precedent for the idea that states’ attorneys generals ought to pick and choose among the laws they defend, just as there is no precedent for the president’s decision to serially alter his signature legislative “achievement” as he has done with Obamacare, or to empower his agencies to regulate far in advance of authority granted them by the Congress.

For the benefit of AG Holder, let’s jump in the way-back machine to far, far ago: November 2, 2008:

Obama told MTV he believes marriage is “between a man and a woman” and that he is “not in favor of gay marriage.”

At the same time, Obama reiterated his opposition to Proposition 8, the California ballot measure which would eliminate a right to same-sex marriage that the state’s Supreme Court recently recognized.

“I’ve stated my opposition to this. I think it’s unnecessary,” Obama told MTV. “I believe marriage is between a man and a woman. I am not in favor of gay marriage. But when you start playing around with constitutions, just to prohibit somebody who cares about another person, it just seems to me that’s not what America’s about.”

“Usually, our constitutions expand liberties, they don’t contract them,” he added.

Now back to the present day. Attorney General Holder is demanding that the nation’s elected chief law enforcement officers of every state reach a conclusion that the president hadn’t reached less than six years ago and further, that she or he impose it on their states despite their sworn oaths to uphold and defend the constitutions of their states.

Less than two years ago, North Carolina voters passed a ban on same sex marriage by a 60 to 40% vote, becoming the 30th state to do so, and yet the United States Attorney General argues that North Carolina Attorney General Roy Cooper, who favors same sex marriage, should refuse to defend the law that the citizens of his state passed overwhelmingly less than two years ago. A handful of state attorneys general have arrogated to themselves this right to pick and chose among their state’s laws –the Times asserts this has happened in California, Illinois, Nevada, Oregon, Pennsylvania,and Virginia– but it is unclear if any of these “leaders” announced their intent to nullify state law before their elections or only after they had safely negotiated their first appeal for votes. President Obama’s decision to strike his pose came only in a desperate campaign for re-election when he jettisoned his old position for a new one tailored to turn out his base. AG Holder’s “bold” declaration also comes as his lame duck status advances to end-stage and he looks out to speaking events and future board seats to feather his retirement.

Holder’s position is far removed from a courageous decision to risk political future for principled stance. There is no risk on his part, just as there was no risk on the president’s part. Both are posing, and in posing, sanitize a deep lawlessness.

If an attorney general can refuse to defend one portion of his state’s constitution, why not another? Will the Attorney General encourage pro-life attorneys general to stop defending abortion clinics beset by protesters? Will he encourage district attorneys convinced that heroin addiction is a disease and the use of heroin wrongly classified as a crime to cease prosecuting offenders brought by their law enforcement officials to their jails?

Laws exist to guide even the most noble-minded elected official and certainly to cabin the ambitions of the worst of the lot. The rule of law protects everyone and channels everyone’s desire for change into political activity, not into gaining office from which unilateral decrees might issue.

The Attorney General’s latest encouragement to lawlessness ought to press an answer from every attorney general candidate before every election: Will you uphold your oath and defend the laws of the state as you swear to do, or do you not take such things as oaths seriously?

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    Hugh Hewitt
  • Hugh Hewitt is a lawyer, law professor, and broadcast journalist. A proficient blogger, Hugh Hewitt has one of the most visited political blogs in the U.S.

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