Metro Weekly

Holder: State bans on same-sex marriage unconstitutional

Photo: Eric Holder. Credit: North Charleston/flickr.

Photo: Eric Holder. Credit: North Charleston/flickr.

When the issue of marriage equality once again comes before the nation’s highest court, the Obama administration will file a brief advocating for same-sex couples’ right to marry, Attorney General Eric Holder said during an interview with ABC News.

“I think we will file a brief that is consistent with the actions that we have taken over the past couple of years,” Holder told ABC’s Pierre Thomas. “We did not defend the Defense of Marriage Act. We were vindicated by the Supreme Court. The president then asked us to make the promise of the Windsor decision real. I sent a letter to the president just a couple weeks ago that talked about all the things we have done to knock down the barriers that still exist for same-sex married couples.”

According to Holder, these actions leave the Obama administration arguing that state bans on same-sex marriage are unconstitutional the logical next step.

“We’re proud of what we have done,” Holder said. “If a case comes before the Supreme Court we will file something consistent with what we have done that will be in support of same-sex marriage.”

Holder’s remarks come after Utah officials announced last week they will appeal a federal court decision declaring the state’s same-sex marriage ban unconstitutional to the Supreme Court, although the court has no obligation to hear the case. The office of Utah Attorney General Sean Reyes announced the decision July 9, opting to take the state’s appeal to the Supreme Court, rather than the full 10th Circuit Court of Appeals, in order to “obtain clarity and resolution from the highest court.”

Last month, the 10th Circuit Court of Appeals ruled 2-1 to uphold a lower court’s ruling that Utah’s ban on same-sex marriage is unconstitutional. On December 20 U.S District Court Judge Robert J. Shelby found Utah’s same-sex marriage ban in violation of the U.S. Constitution, leading more than 1,000 same-sex couples to marry before the U.S. Supreme Court interjected and halted marriages pending appeal. The appeals court heard oral arguments in the case on April 10.

Asked if he believes discrimination against same-sex couples in terms of marriage is unconstitutional, Holder said he does.

“That’s why we decided not to support the Defense of Marriage Act,” Holder continued. “When you have differentiations that are made on the basis of sexual orientation they should be subject to heightened scrutiny. That being the case, I think a lot of these measures that ultimately will come before the court will not survive a heightened scrutiny examination.”

Holder’s remarks come little more than year after the Supreme Court declared Section 3 of DOMA, defining marriage as between a man and a woman, unconstitutional. That sweeping 5-4 decision by the high court has sparked litigation challenging same-sex marriage bans in every state where they are on the books. Marriage equality also has not lost a single day in court since the Windsor decision. Federal courts have ruled in favor of marriage equality in Utah, Ohio, Oklahoma, Kentucky, Idaho, Illinois, Indiana, Michigan, Pennsylvania, Tennessee, Texas, Virginia, Oregon, Wisconsin and Indiana. State courts in Arkansas, New Jersey, New Mexico and Colorado have also sided with marriage equality. 

In February, Holder gave state attorneys general the green light to stop defending bans on same-sex marriage.

Justin Snow is Metro Weekly's former political editor and White House correspondent. Follow him on Twitter @JustinCSnow.