The Obama administration on Tuesday offered verbal support to U.S. state officials who decline to defend their own states' bans on same-sex marriage, entering cautiously into legal fights that are playing out across the United States.
U.S. Attorney General Eric Holder spoke to a conference of state attorneys general less than a week after Oregon's attorney general said her office would cease its defense in federal court of the state's gay marriage ban, a decision that followed similar moves by her counterparts in Nevada, Pennsylvania and Virginia.
Chief state legal officers generally are bound to defend laws that are on the books, regardless of whether they agree with them, and Holder said any decision to do otherwise must be rare and founded on constitutional arguments.
"But, in general, I believe we must be suspicious of legal classifications based solely on sexual orientation," Holder told the National Association of Attorneys General.
Holder was more explicit on Monday in an interview with the New York Times, saying the recent decisions were "something that's appropriate for an attorney general to do."
To the newspaper, he drew an analogy to the 1950s legal fights over racial segregation in public schools. "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," the Times quoted Holder as saying.
Conservative opponents of same-sex marriage criticized Holder's remarks.
"When there are non-frivolous grounds for doing so, a state attorney general has a fundamental ethical duty as a lawyer to defend state laws against attacks under federal law. That standard means that state attorneys general are obligated to defend state marriage laws," Ed Whelan, a former U.S. Justice Department lawyer, said in a statement.
SUPREME COURT MOMENTUM
In all, 17 of the 50 states and the District of Columbia recognize gay marriage in a trend that gained momentum after the U.S. Supreme Court ruled in June that legally married same-sex couples nationwide are eligible for federal benefits. The court struck down part of the 1996 federal Defense of Marriage Act.
On Holder's recommendation, President Barack Obama in 2011 dropped the U.S. Justice Department's defense of that legal provision, leading congressional Republicans to hire their own lawyer to take the department's place.
The Justice Department has not taken legal action against state bans on same-sex marriage. In a 2012 interview with ABC News in which Obama said he supported same-sex marriage, the president said he was hesitant to tell states what to do.
"Different communities are arriving at different conclusions, at different times, and I think that's a healthy process and a healthy debate, and I continue to believe that this is an issue that is going to be worked out at the local level," Obama said then.
In Oregon, a 2004 voter-approved amendment to the state constitution banned same-sex nuptials. While Oregon law bans same-sex marriages in the state, it does allow domestic partnerships and since October has recognized the marriages of same-sex couples wed elsewhere.
Same-sex couples have sued over the ban, arguing it violates their right to equal protection of the law.
Since mid-December, prohibitions on same-sex marriage have been ruled unconstitutional in New Mexico, Utah and Virginia by federal judges. The Utah and Virginia decisions have been stayed pending appeal.
A related fight over gay rights is playing out in Arizona, where state lawmakers have passed a bill that would let businesses refuse service to people when doing otherwise would violate their religious beliefs. Republican Governor Jan Brewer is weighing whether to sign the bill, which critics call anti-gay.