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Does Dustin McDaniel have duty to defend ban on same-sex marriage? 

click to enlarge Arkansas Attorney General Dustin McDaniel image
  • Brian Chilson
  • Attorney General Dustin McDaniel

Early this week, U.S. Attorney General Eric Holder had a message for folks in Dustin McDaniel's position. Holder called on the nation's state attorneys general to consider taking up the cause of marriage equality by refusing to defend their states' laws that block same-sex couples from access to marriage. Contending that the fight for marriage equality is a continuation of the civil rights struggle begun on race in the 1950s, Holder argued that he would have made a different decision than those in the office of state attorney general at that time. "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.

Holder suggested that while attorneys general typically have a duty to defend state law, the rules of the game are altered when a law defies the U.S. Constitution's equal protection clause. When a minority group has been picked on by the majority because of a single inherent trait, all involved in the legal process have a responsibility to step up to protect them. Despite their unique role in the process, attorneys general appropriately take that same step in such "exceptional circumstances," Holder said in a speech to the National Association of Attorneys General.

Indeed, the decision by the Holder-led Justice Department to switch sides in the Defense of Marriage Act cases, including the Windsor case that overturned a key provision of DOMA, provided important momentum in the pro-equality direction in those proceedings. So, when Holder makes the case to state-level attorneys general that it's appropriate for them to take such a step, he speaks from the perspective of someone who's grappled with the competing ideals of a duty to defend the laws of the nation and equality in the eyes of the Constitution.

In recent years, a half dozen state AGs have taken just the step Holder advocates on marriage. For instance, new Virginia Attorney General Mark Herring has refused to defend his state's constitutional amendment barring the recognition of same-sex marriage in Virginia as the case proceeds to the Fourth Circuit Court of Appeals. However, more states' AGs disagree with what they see as a call for a dereliction of their duty as their states' attorney. As the president of the National Association of Attorneys General, J.B. Van Hollen of Wisconsin, responded to Holder's remarks, "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. We are the ultimate defenders of our state constitutions."

Arkansas law places clear responsibility with the attorney general to defend the state's laws. As the Arkansas Code states, the attorney general "shall be the legal representative ... in all litigation where the interests of the state are involved." Moreover, like all recent Arkansas attorneys general, McDaniel operates under the cloud of Steve Clark, who as AG was harangued for what was seen by advocates as a weak defense of Arkansas's blatantly unconstitutional creation science bill in the early 1980s. Televangelist Pat Robertson went so far as to say that Clark was purposefully losing the case. The pushback that Clark received served as a warning to future AGs on the potential cost of not defending measures popular with a group of engaged voters (the state's marriage ban clearly falls in that category).

Of course, Arkansas's AG takes an oath of loyalty to the U.S. Constitution as well. Thus, McDaniel — like his colleagues around the country defending their own states' bans on same-sex marriage — is caught in a moment when the U.S. Supreme Court is on the cusp of saying the Constitution protects the right of same-sex couples to be married. McDaniel's office is currently defending the state marriage ban and it would be awkward for the state to switch positions in the midst of that case. Whatever the outcome of the case now in Circuit Judge Chris Piazza's court, however, a new opportunity for the state to reconsider its position will arise as the case works its way up on appeal. Holder's high-profile statements on the issue are meant to nudge McDaniel and others to rethink the side they've come down on.

McDaniel is unquestionably "doing his job" by defending the state's marriage ban. However, moving toward a hiatus from electoral politics, having voiced the need for civil unions for same-sex couples since 2006 (which are also prohibited by Arkansas's expansive constitutional amendment), and knowing the clear direction of constitutional law and public opinion on the issue, McDaniel would be even more right to take an "exceedingly rare" step (in Holder's words) of refusing to defend the state's unconstitutional ban as the proceedings move forward.

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