The rights of same-sex couples got another boost Monday when U.S. Attorney General Eric H. Holder Jr. offered a carefully worded piece of advice to his state counterparts on when they can choose not to defend gay-marriage bans. Mr. Holder didn’t suggest that state attorneys general can just disavow these laws based on politics or personal objections, but rather that, when these state laws relate to basic Constitutional issues such as the equal-protection clause, attorneys general should apply the highest level of scrutiny before deciding not to defend them on the grounds that they are discriminatory.
A finely calibrated distinction, to be sure. As an example of what he meant, Mr. Holder cited Brown v. Board of Education, which ordered public schools to integrate. “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,” Mr. Holder said. The U.S. attorney general has quite rightly likened the quest for gay rights today as an extension of the era of the civil-rights movement. And there are plenty of people today who back him up.
Wednesday, a federal judge in Texas — Texas, y’all! — struck down that state’s gay-marriage ban, though it will not go into effect pending Attorney General Greg Abbott’s intent to appeal. Also this week, Atlanta Mayor Kasim Reed joined others in opening the Southerners for the Freedom to Marry campaign, a $1-million effort to overturn bans in 14 Southern states that have statutory or constitutional laws defining a legal marriage as between a man and a woman, period. This includes Florida, of course, where voters in 2008 approved a state constitutional amendment banning gay marriage.
In January, six couples filed a lawsuit in Miami-Dade Circuit Court challenging the ban for violating the U.S. Constitution’s guarantees of equal treatment and due process. It’s about time. Federal court judges have struck down such bans in several states, and Florida’s is surely bound for the same fate.
In Arizona, Republican Gov. Jan Brewer vetoed a bill that would have allowed business owners to invoke religion to refuse service to gay couples. This was inflammatory and controversial legislation that she said could have “negative consequences.”
Unfortunately, she stopped way short of making a full-throated defense of equal rights, but she did the right thing.
Civic leaders and business groups in Arizona expressed their opposition to the bill and feared that it would bring shame and boycotts to their state. Rightly so. Gays are hardly the first group that’s been threatened with being refused service in this country. Remember all those lunch-counter sit-ins that African Americans staged in the 1960s? And many Cuban Americans can remember signs saying “No Cubans” when seeking to rent a place to live after arriving here in the same time period.
According to The New York Times, attorneys general in Nevada, Oregon, Virginia, Pennsylvania, California and Illinois have refused to defend their states’ gay-marriage bans. Florida Attorney General Pam Bondi should follow suit. She would be showing a tremendous amount of political courage as she runs for reelection.
And consider if the same-sex marriage ban were on Florida’s November ballot. Attitudes have changed markedly since the amendment was approved in 2008. It likely wouldn’t pass today.
Mr. Holder is on the right side of history in his support. No one should be denied the right to wed based on sexual orientation. It would be such a welcome change if Florida got on the right side of history on this issue, too.