April 25, 2014 12:34 PM UTC

Talk-show host and Cynthia Coffman wrong that AG must defend gay-marriage ban

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• by: Jason Salzman

(Promoted by Colorado Pols)

KVOR guest host Jimmy Bensberg talked last week with Cynthia Coffman, who's running for Colorado Attorney General.

CYNTHIA COFFMAN: Taking a page from U.S. Attorney General Eric Holder’s playbook, [Democratic AG candidate Don] Quick held a press conference on the steps of state courts building and called on John Suthers to drop his defense of the definition of marriage –

BENSBERG: Ugh!

COFFMAN: –that’s in the Constitution of Colorado. You know the voters, a number of years back, amended the Constitution and said we want marriage to be the traditional definition of being between a man and a woman. That’s what the voters approved, and Don Quick says he doesn’t agree with that. He doesn’t believe that that is constitutional, even though the Supreme Court of the United States hasn’t said that. And so presumptively, he thinks that the Attorney General should not defend that provision of the Constitution. And you know, that kind of picking and choosing as an Attorney General, what parts of the Constitution you defend, I can’t imagine a better thing to criticize my opponent about, than starting there.

Left out of this loving, tolerant, and legally ignorant conversation is the fact that Suthers' proactive defense of the federal "Defense of Marriage Act (DOMA)," which was filed in the name of protecting Colorado's gay-marriage ban, was actually an attack on gay couples who wanted to be buried together in military cemeteries or to get spousal benefits under Medicaid, etc. Suthers' DOMA action looked like a wrong legal tactic, from the perpective of protecting Colorado's Constitutional amendment.

But more broadly, and to the heart of the matter, you want an Attorney General who will make public-minded decisions about what makes constitutional sense, regardless of the politics involved.

In the case of defending Colorado's anti-gay-marriage amendment, Suthers could have decided, as six other state Attorneys General did, that it's a wrong legal move. Despite what Cynthia Coffman says, nothing forces Suthers to take action.

Here's what the Attorney General Eric Holder told the New York Times:

But Mr. Holder said when laws touch on core constitutional issues like equal protection, an attorney general should apply the highest level of scrutiny before reaching a decision on whether to defend it. He said the decision should never be political or based on policy objections.

“Engaging in that process and making that determination is something that’s appropriate for an attorney general to do,” Mr. Holder said.

As an example, Mr. Holder cited the landmark Brown v. Board of Education case, which forced public school integration in 1954.