U.S. Attorney General Eric Holder urged his state-level counterparts to recognize that they're not required to defend any state ban on same-sex marriage, speaking to The New York Times on Monday.
Holder argued that attorneys general should apply significant scrutiny to laws -- like gay marriage bans -- that raise constitutional issues before deciding to defend them.
“Engaging in that process and making that determination is something that’s appropriate for an attorney general to do,” he told the Times.
Holder has been a vocal proponent of social justice as attorney general, refusing to legally defend the portion of the Defense of Marriage Act that banned the federal government from recognizing same-sex marriages sanctioned by the states -- a move that ultimately led to the Supreme Court declaring that part of the law unconstitutional last summer.
The attorney general told The New York Times that he would have applied the same level of scrutiny to the kind of school segregation laws that Brown v. Board of Education overturned 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,” Holder said.
Democratic attorneys general in six states -- Virginia, Pennsylvania, California, Illinois, Nevada and Oregon -- have already declined to defend their state's ban on same-sex marriage. Those decisions have drawn criticism from Republicans and Democrats alike.
"When legal arguments exist to defend a law, it is the duty of the Office of the Attorney General under North Carolina law to make those arguments in court regardless of whether I agree with the law," said North Carolina Attorney General Roy Cooper (D), who personally supports same-sex marriage.
“It really isn’t [Holder's] job to give us advice on defending our constitutions any more than it’s our role to give him advice on how to do his job,” Wisconsin Attorney General J.B. Van Hollen (R) told the Times. “We are the ultimate defenders of our state constitutions.”
Back in 2010, Holder sounded more like Cooper, arguing in reference to DOMA that the Justice Department "has a responsibility to defend those statutes that the Congress has passed if there is an argument that can be made to defend those statutes."