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Holder Sees Way to Curb Bans on Gay Marriage

Attorney General Eric H. Holder Jr. in his office on Monday, when he spoke about the defense of states’ same-sex marriage bans.Credit...Stephen Crowley/The New York Times

WASHINGTON — 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 was careful not to encourage his state counterparts to disavow their own laws, but said that officials who have carefully studied bans on gay marriage could refuse to defend them.

Six state attorneys general — all Democrats — have refused to defend bans on same-sex marriage, prompting criticism from Republicans who say they have a duty to stand behind their state laws, even if they do not agree with them.

It is highly unusual for the United States attorney general to advise his state counterparts on how and when to refuse to defend state laws. But 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.”

In his role as the administration’s leading voice on civil rights issues, he has at times earned sharp criticism from Republicans who see him as infringing on state autonomy. He has sued Texas and North Carolina, for example, over laws that would require voters to show identification at the polls. Studies show poor and minority voters are least likely to have identification.

His comments signal the latest manifestation of the Obama administration’s evolving position on gay rights. Mr. Obama came into office opposed to same-sex marriage. But in 2011, he decided against defending the Defense of Marriage Act and ended the “don’t ask, don’t tell” policy barring gays and lesbians from the military. The next year, the president said he personally supported gay marriage.

Mr. Holder is scheduled to address the National Association of Attorneys General at a conference on Tuesday, but reports of his comments drew immediate criticism from the president of the bipartisan group.

“It really isn’t his 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,” said Attorney General J. B. Van Hollen of Wisconsin, a Republican. “We are the ultimate defenders of our state constitutions.”

While the Supreme Court struck down the Defense of Marriage Act, it has not weighed in on whether same-sex couples have a constitutional right to marry. The legal battleground, for now, has shifted to the states, and the collective voice of several attorneys general refusing to defend their laws could help sway those cases.

One of those cases is in Wisconsin, where four same-sex couples sued this month to overturn the state’s constitutional amendment banning gay marriage.

Mr. Van Hollen said Mr. Holder’s analysis might make sense in rare cases related to state laws. But he said that in states that have passed constitutional amendments, attorneys general must defend them.

“If there’s one clear-cut job I have, it’s to defend my Constitution,” Mr. Van Hollen said. “There is no one else in position to defend the State Constitution if it comes under attack.”

Colorado’s attorney general, John W. Suthers, a Republican, has also warned against attorneys general making decisions about which laws to defend.

“I personally oppose a number of Colorado’s laws as a matter of public policy, and a few are contrary to my religious beliefs,” Mr. Suthers wrote in The Washington Post this month. “But as my state’s attorney general, I have defended them all — and will continue to.”

Same-sex couples in the state are challenging Colorado’s constitutional ban on gay marriage.

But in Nevada, Oregon, Pennsylvania and Virginia, state attorneys general have refused to defend bans on same-sex marriage. Attorneys general in California and Illinois similarly refused to defend bans that were later overturned.

“The answers to these questions are crystal clear,” said Gary Buseck, legal director of Gay and Lesbian Advocates and Defenders. “Attorneys general can’t close their eyes to something that’s blatantly unconstitutional. They’re not supposed to defend the laws at all costs.”

In Arizona this week, Gov. Jan Brewer, a Republican, must decide whether to sign legislation that would allow business owners to deny service to same-sex couples. Asked in the interview about the legislation, Mr. Holder said he had not reviewed that bill and had no view on whether it was constitutional.

But he said he was certain that, if signed into law, it would face swift legal challenges. And the state’s attorney general would have to decide whether to defend it.

A version of this article appears in print on  , Section A, Page 1 of the New York edition with the headline: Holder Sees Way to Curb Bans on Gay Marriage. Order Reprints | Today’s Paper | Subscribe

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