[Attorneys general must decide] not
merely to use our legal system to settle disputes and punish those who
have done wrong, but to answer the kinds of fundamental questions –
about fairness and equality – that have always determined who we are and
who we aspire to be, both as a nation and as a people.
These are the questions that drove
President Obama and me to decide, in early 2011, that Justice Department
attorneys would no longer defend the constitutionality of Section 3 of
the Defense of Marriage Act. As I’ve said before, this decision was not
taken lightly. Our actions were motivated by the strong belief that all
measures that distinguish among people based on their sexual orientation
must be subjected to a heightened standard of scrutiny – and,
therefore, that this measure was unconstitutional discrimination. Last
summer, the Supreme Court issued a historic decision – United States v.
Windsor – striking down the federal government’s ban on recognizing gay
and lesbian couples who are legally married. This marked a critical step
forward, and a resounding victory for equal treatment and equal
protection under the law.
More recently – and partly in response to
the Windsor decision – a number of state attorneys general, including
those in Pennsylvania, Nevada, Virginia – and, just last week, Oregon –
have reached similar determinations after applying heightened scrutiny
to laws in their states concerning same-sex marriage.
Any decisions – at any level – not to
defend individual laws must be exceedingly rare. They must be reserved
only for exceptional circumstances. And they must never stem merely from
policy or political disagreements – hinging instead on firm
constitutional grounds. But in general, I believe we must be suspicious
of legal classifications based solely on sexual orientation. And we must
endeavor – in all of our efforts – to uphold and advance the values
that once led our forebears to declare unequivocally that all are
created equal and entitled to equal opportunity.
This bedrock principle is immutable. It
is timeless. And it goes to the very heart of what this country has
always stood for – even though, as centuries of advancement in the cause
of civil rights have shown, our understanding of it evolves over time.
As I said just after the Administration’s decision on DOMA was
announced, America’s most treasured ideals were not put into action or
given the full force of law in a single instant. On the contrary: our
ideals are continually advanced as our justice systems – and our Union –
are strengthened; and as social science, human experience, legislation,
and judicial decisions expand the circle of those who are entitled to
the protections and rights enumerated by the Constitution.
As we gather here in Washington today, I
believe that our highest ideals – realized in the form of landmark
Supreme Court rulings, from Brown to Zablocki, from Romer to Lawrence,
from Loving to Windsor – light a clear path forward. They have impelled
us, in some instances, to extraordinary action. And the progress we’ve
seen has been consistent with the finest traditions of our legal system,
the central tenets of our Constitution, and the “fundamental truth”
that, as President Obama once said, “when all Americans are treated as
equal . . . we are all more free.”
In an interview yesterday with the NYT,
Holder said, in advance of the speech: “Engaging in that process and
making that determination is something that’s appropriate for an
attorney general to do."Some Republicans, of course, are not happy with Holder's remarks:
“It really isn’t his 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,” said Attorney General J. B. Van
Hollen of Wisconsin, a Republican. “We are the ultimate defenders of our
state constitutions.”
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