Bench Memos

AG Holder Flunks Legal Ethics 101

In comments to the New York Times yesterday and in a speech to state attorney generals today, Attorney General Eric Holder invited state attorneys general to refuse to defend state marriage laws. (The Times article asserts that Holder “was careful not to encourage his state counterparts to disavow their own laws,” but I don’t see how his comments can be understood as anything but encouraging them to do so.)

I spelled out in my recent Weekly Standard essay how state attorneys general have an obligation to defend state marriage laws. It’s unfortunate that Holder doesn’t understand the basics, but it’s hardly surprising: Holder, after all, departed from DOJ’s longstanding practices when he refused to defend DOMA, and he has routinely indulged his political preferences at the expense of the rule of law.

I’m pleased to see that the Republican Attorneys General Association has issued a statement that forcefully takes issue with Holder. Nothing yet, apparently, from the counterpart Democratic association or from the ABA.

Here is the RAGA press release (which I received by e-mail):

Washington, D.C. (February 25, 2014) –  The Republican Attorneys General Association (RAGA) issued the following statement today in response to U.S. Attorney General Eric Holder’s claim that state attorneys general do not have to defend their states’ ban on same-sex marriage.

“A state attorney general has a solemn duty to the state and its people to defend state laws and constitutional provisions against challenge under federal law. To refuse to do so because of personal policy preferences or political pressure erodes the rule of law on which all of our freedoms are founded. A government that does not enforce the law equally will lead our society to disrespect the rule of law,” said Luther Strange, Alabama Attorney General.

RAGA Chairman Alan Wilson, South Carolina Attorney General, added, “This administration is repeatedly ignoring the rule of law. We’re seeing the same thing happen with Obamacare as the Obama administration continues to pick and choose which parts of the law they will enforce and which they will delay without legislative action. Our freedom depends on upholding the rule of law and obtaining the consent of the governed. Republican Attorneys General will continue to fight every single day to protect our Constitution and defend states’ rights.”

“What General Holder is asking state Attorneys General to do – is accept a gratuitously offered non-binding legal opinion on an issue that has not been decided by a national court of competent jurisdiction at this time. The approach is as inappropriate, as it is unprecedented, ” said Tim Fox, Montana Attorney General.

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