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Seven attorneys general won’t defend their own state’s gay-marriage bans


Sharon Burk, left, and Molly Wagner embraced outside the Supreme Court last June, after the court cleared the way for same-sex marriage in California. (AP Photo/Charles Dharapak)

Update 3/4/2013: Kentucky’s attorney general joined the list, making seven.

The attorneys general of at least six states have in recent years said they won’t defend their states’s bans on same-sex marriage because they violate the federal or state constitution.

Oregon Attorney General Ellen Rosenblum became the latest to join that group on Thursday when, in a filing challenging Oregon’s ban on same-sex marriage, she said the state “cannot withstand a federal constitutional challenge under any standard of review.”

Here’s how these attorneys general — the states’ top law enforcement officers — explained their refusal to support their state’s ban on gay marriage:


“State Defendants will not defend the Oregon ban on same-sex marriage in this litigation. Rather, they will take the position in their summary judgment briefing that the ban cannot withstand a federal constitutional challenge under any standard of review. In the meantime, as the State Defendants are legally obligated to enforce the Oregon Constitution’s ban on same-sex marriage, they will continue to do so unless and until this Court grants the relief sought by the plaintiffs.”

(Filing by Attorney General Ellen Rosenblum via the Oregonian, Feb. 20, 2014)


New rulings from the U.S. Supreme Court and Ninth Circuit set precedent that made Nevada’s defense unsustainable, according to the state’s attorney general.

“When the Federal District Court decided this case in November 2012, the law regarding treatment of same-sex couples under traditional marriage laws was uncertain. But the legal landscape has since changed. … After thoughtful review and analysis, the State has determined that its arguments grounded upon equal protection and due process are no longer sustainable.”

(Statement by Attorney General Catherine Cortez Masto, Feb. 10, 2014)


“I swore an oath to both the United States Constitution and the Virginia Constitution. After thorough legal review, I have now concluded that Virginia’s ban on marriage between same sex couples violates the Fourteenth Amendment of the U.S. Constitution on two grounds: marriage is a fundamental right being denied to some Virginians, and the ban unlawfully discriminates on the basis of both sexual orientation and gender. … The supporters of Virginia’s ban on same-sex marriage have argued in their legal brief that marriage between a man and a woman best promotes responsible procreation and optimal child rearing. This argument not only disrespects Virginia’s same-sex couple families, but it is illogical.  It is simply inconceivable that denying same-sex couples the right to marry will make heterosexual couples more likely to marry and have children.”

(Statement by Attorney General Mark Herring, Jan. 23, 2014)


“I cannot ethically defend the constitutionality of Pennsylvania’s version of DOMA where I believe it to be wholly unconstitutional. … It is a lawyer’s ethical obligation under Pennsylvania’s Rules of Professional Conduct to withdraw from a case in which the lawyer has a fundamental disagreement with the client. … I know that in this state there are people who don’t believe in what we are doing, and I’m not asking them to believe in it. I’m asking them to believe in the Constitution.”

(Statement by Attorney General Kathleen Kane, July 11, 2013)


“I declined to defend Proposition 8 because it violates the Constitution. The Supreme Court has described marriage as a fundamental right 14 times since 1888. The time has come for this right to be afforded to every citizen.”

(Statement by Attorney General Kamala D. Harris, March 26, 2013)


In two filings on June 1, 2012, state Attorney General Lisa Madigan asked that her office be allowed to join two cases against the state’s gay marriage ban. Madigan wrote that the office “respectfully requests the right to intervene in this case to present the Court with arguments that explain why the challenged statutory provisions do not satisfy the guarantee of equality under the Illinois Constitution.”

(Filings by Attorney General Lisa Madigan via Metro Weekly, June 1, 2012)

Niraj Chokshi is a general assignment reporter for The Washington Post.

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