The headlines blared: “Eric Holder Says State Attorneys General Do Not Have to Defend Gay Marriage Ban.” The U.S. attorney general told state attorneys general on Tuesday that they need not defend their states’ laws and constitutions against challenges if they believe the laws are discriminatory, immediately prompting a backlash from the Republican Attorneys General Association, who said Holder’s counsel “erodes the rule of law.”
In his remarks, Holder told state attorneys general to exercise the “highest level of scrutiny” before choosing not to defend their states’ laws.
However, after the speech was over and the reporters left, Holder returned for a question-and-answer session with his state counterparts, and conceded that someone needs to defend the laws if they choose not to, Byron York of the Washington Examiner reports.
Tom Horney, the attorney general of Arizona, reportedly asked Holder “if he would agree that if no one else has standing, then the attorney general should make sure that someone is able to defend the case.”
Holder agreed that if the attorney general is not defending marriage laws in his state, then he should make sure someone else does, possibly a private attorney paid by the state.
This position is much more nuanced than Holder’s pronouncement as originally reported. Rather than giving the green light for attorneys general to leave state laws undefended if they choose, Holder apparently envisions a scheme under which state laws are defended, but not necessarily by the state attorney general.
Yet this proposal has some legal complications: Last year, the Supreme Court ruled in Hollingsworth v. Perry that citizens of a state do not have standing in a federal court to defend a law that the state refused to defend. In a 5–4 decision, the Supreme Court said that activists who had initially proposed California’s Proposition 8 did not have standing to defend the proposition federally when the state itself had declined its right of appeal.
Subsequent to the Hollingsworth decision, it remains uncertain whether state-hired private attorneys would have standing to defend laws the state refused to defend. If private attorneys do not have standing in federal court when the state refuses to defend its own laws, would a private attorney hired by the state qualify — if the challenge comes in state or federal court?
That particular question has neither been answered by the Supreme Court nor parsed by Holder. Ultimately, despite Holder’s attempt at nuance, the laws duly passed by state representatives and referenda approved by the people may still lack legal defense if the person charged with enforcing the law neglects his duty.
— Alec Torres is a William F. Buckley Fellow at the National Review Institute.