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President Barack Obama’s nominee for attorney general fielded questions on same-sex marriage and polygamy during her confirmation hearing Wednesday before the Senate Judiciary Committee.
Loretta Lynch was asked by Sen. Lindsey Graham (R-S.C.) how the U.S. Supreme Court could find state bans on same-sex marriage unconstitutional but not bans on polygamy, channeling a slippery slope argument long made by opponents of marriage equality.
“If the Supreme Court rules that same-sex marriage bans are unconstitutional and it violates the U.S. Constitution for a state to try to limit marriage between a man and a woman, that is clearly the law of the land, unless there is a constitutional amendment to change it,” Graham said. “What legal rational would be in play that would prohibit polygamy? What is the legal difference between a ban on same-sex marriage being unconstitutional but a ban on polygamy being constitutional?”
Lynch, however, declined to entertain Graham’s slippery slope argument, stating she was not familiar with the arguments at hand.
“I have not been involved in the argument or analysis of the cases that have gone before the Supreme Court and I’m not comfortable undertaking legal analysis without having had the ability to undertake a review of the relevant facts and the precedent there,” Lynch said. “So I certainly would not be able to provide you with that analysis at this point in time, but I look forward to continuing the discussions with you.”
Lynch was also asked about outgoing Attorney General Eric Holder’s decision in February 2011 to cease defending the constitutionality of the Defense of Marriage Act’s definition of marriage as between a man and a woman, which was later struck down as unconstitutional by the Supreme Court in June 2013.
Responding to questions from Sen. Orrin Hatch (R-Utah), Lynch said it is one of the Justice Department’s first and foremost duties to defend laws passed by Congress.
“Attorney General Holder answered that same question in the same way,” Hatch responded. “The Justice Department had made reasonable arguments that the Defense of Marriage Act is constitutional, but then the attorney general chose to stop making those arguments because of his personal views. And by breaking his promise, he cast doubt about others who make the same commitment as you did today.”
Asked for more assurances that she will defend laws passed by Congress, Lynch said it would be rare for the Justice Department to deem a law unconstitutional.
“It’s my view that when it comes to the position of the attorney general and the role of the Department of Justice in defending the statutes as passed by this Congress, the issue is not my personal views or any issue of bias or policy even, but it is the duty and responsibility of the Department of Justice to defend those statutes.” According to Lynch, there may be “rare instances” where careful legal analysis raises constitutional issues. “But I anticipate those would be few and far between,” she said. “I also think that should we reach that point if there is a matter, it’s a matter I would prefer to have discussion about.”
Lynch, who currently serves as the U.S. Attorney for the Eastern District of New York, was nominated by Obama in November to replace Holder. She is the first Obama cabinet nominee to face confirmation since Republicans gained control of the Senate. If confirmed, she would become the first African-American woman to serve as attorney general, and only the second African-American to serve in that role after Holder.
With the Supreme Court having agreed to rule later this year on whether states can ban same-sex couples from marrying, Holder has said the Justice Department will file a brief urging the Supreme Court “to make marriage equality a reality for all Americans.” During his State of the Union address last week, Obama declared marriage equality a “civil right” and has said he hopes the Supreme Court will recognize that there is “no good reason” to ban same-sex marriage.
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