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Indefensible

Mar 17, 2014, Vol. 19, No. 26 • By TERRY EASTLAND
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In a speech the other day to state attorneys general, the U.S. attorney general, Eric Holder, offered an ideal job description for himself and his state counterparts: “not merely to use our legal system to settle disputes and punish those who have done wrong, but to answer the kinds of fundamental questions—about fairness and equality—that have always determined who we are and who we aspire to be.” This is what “all justice professionals are called” to do, said Holder, leaving us to wonder what we the mere people are supposed to do.

Eric Holder

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Diving into one aspect of our legal system, Holder observed that, as with the U.S. federal attorney general (himself), so it is with state attorneys general: They are not obligated to defend laws that they deem unconstitutional. Even so, he added, decisions not to defend a law “must be exceedingly rare.” Yet he noted with approval that five state attorneys general (all Democrats) had recently made such a decision, each concluding that his state’s ban on so-called same-sex marriage is unconstitutional and therefore indefensible.

Holder’s speech, a mini-version of which he shared the day before with the New York Times, was a not-so-subtle preachment that attorneys general still defending such bans should declare them unconstitutional and abandon their defense—in other words, disavow laws they are sworn to enforce. The Republican state attorneys general, some 24 in all, demurred, with the South Carolina attorney general, Alan Wilson, issuing a statement saying the administration was “ignoring the rule of law.”

In case you wonder why our primo justice professional was giving this speech, the answer is that he wants a country that, as a matter of constitutional law, has redefined marriage to include “same-sex marriage.” That was not exactly the position of Holder’s boss, President Obama, during the 2008 election, when Candidate Obama said marriage is “between a man and a woman.” But Obama evolved, announcing in 2012, as he bid for a second term, that he personally was in favor of same-sex marriage. His goal is now that of Holder, his appointee.

And Holder would like to see the Supreme Court issue a decision that state laws prohibiting same-sex marriage violate the equal protection clause of the Constitution. Holder reckons, or so it seems, that the sight of more and more state attorneys general refusing to defend such laws might influence the Supreme Court in a case challenging a state ban on same-sex marriage, expected to be taken up within the next year or two.

Holder’s speech is the latest of the justice professional’s efforts to advance the cause of “marriage equality,” as its advocates also call it. He is plainly proud of his work, recently winning applause for it from audiences during a visit to Sweden on a recent trip across the pond. But it is a dubious labor, bad for the legal system and bad, too, for the country—quite apart from what you might think about same-sex marriage.

Consider that under longstanding practices an attorney general, the nation’s chief law enforcement officer, must carry out even those laws he disagrees with as a matter of policy. He must also defend laws against constitutional attack so long as there are reasonable, or nonfrivolous, grounds for doing so, a very low bar. Further, he must see to it that the arguments in behalf of a constitutionally challenged law are advanced vigorously, even if he doesn’t agree with those arguments.

In 2009, in litigation over the constitutionality of the Defense of Marriage Act, which defined marriage for purposes of federal law as “the legal union between one man and one woman as husband and wife,” the Justice Department made a workmanlike defense of the statute. As the litigation proceeded, however, the quality of the department’s defense of the statute deteriorated in virtually every respect.

Most important, Justice rejected the constitutional argument that had enjoyed the most success in other DOMA cases, stating in a case from California that “the United States does not believe that DOMA is rationally related to any legitimate interests in procreation and child-rearing” and therefore will not rely on such interests to defend the law against constitutional challenge. That move was unjustified since the procreation and childbearing argument was, objectively speaking, clearly a reasonable one.

It was not surprising that in 2011 the administration formally announced it would no longer defend DOMA. What “drove President Obama and me” to do that, Holder told his state counterparts, was “the strong belief that all measures that distinguish among people based on their sexual orientation must be subjected to a heightened standard of scrutiny.” Yet it’s hard to see how the procreation and childbearing argument (or others, easily identified) fails to meet even that higher standard, unless the bar is set extremely high.

In 2013, the Supreme Court struck down DOMA, but both the majority and the dissent criticized Holder for failing to defend the law. Even so, there was Holder the other day in his speech to the state AGs, holding up heightened scrutiny as the standard they should adopt—in order to declare state bans on same-sex marriage unconstitutional and thus no longer worthy of defense.

Holder’s speech invites some obvious questions: Why must laws that an attorney general disagrees with on grounds of policy nonetheless be executed and defended? Why must the standard for measuring the constitutionality of a statute be set so low and be so easy to meet? And why must arguments on behalf of a law under constitutional attack be vigorously made, regardless of whether the government believes in the arguments or not?

Holder, the justice professional, did not probe such questions in his speech. But the answer to all of them is that, through the means they identify, our legal system extends to Congress, as Drew Days, solicitor general under President Clinton, has said, “the respect to which [it] is entitled as a coordinate branch of government” and “prevents the executive branch from using litigation as a form of post-enactment veto of legislation that the current administration dislikes.”

In serving those goals, our legal system also supports the rule of law and affirms the right of self-governance, a right that recognizes we the people (the “fountain of authority,” James Madison said of us) as the primary agents of social change. Would that we had an attorney general, indeed a president, who still understood our constitutional order in those terms.

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