If politics is the art of the possible, then law should be the art of what is necessary. Eric Holder, the first African American to hold the office of attorney general of the United States, made history by redefining what is both possible and necessary.
When Holder took office in 2009, the U.S. military ban “don’t ask, don’t tell” was still firmly in place, and only two states, Massachusetts and Connecticut, allowed same-sex couples to marry. But during President Obama’s tenure, in the attorney general’s own words, there has been “a seismic shift.”
As Holder leaves office this year, gay and lesbian Americans can now marry in 37 states (and counting). We can serve openly in the U.S. military and are protected against hate crimes under the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, the first pro-LGBT federal law in U.S. history. The number of openly gay judges on the federal bench has increased exponentially. And in part because of Holder’s decision in 2011 to cease defending the constitutionality of Section 3 of the Defense of Marriage Act, following the landmark Supreme Court decision in United States v. Windsor, gay and lesbian couples can now receive federal marriage benefits.
The Obama administration’s legacy on LGBT rights is historic, as are the often complicated strategies crafted by this attorney general that were needed to solidify these achievements.
Holder has been the architect of a skillful plan to place LGBT rights at the forefront of the administration’s civil rights agenda. As the nation’s foremost legal advocate, he is tasked with ensuring that all Americans are treated equally under the law. And this is a responsibility he does not take lightly.
But for Holder, the work is not just political, it’s personal.
In 2012, two former Republican attorneys general, Edwin Meese and John Ashcroft, criticized Holder’s decision not to defend Section 3 of DOMA, saying it was “an unprecedented and ill-advised departure from over two centuries of Executive Branch practice” and “an extreme and unprecedented deviation from the historical norm.” But Holder seemed more emboldened this year when the Department of Justice filed an amicus brief with the Supreme Court in March flatly denouncing state-wide bans on same-sex marriage as being a violation of the Equal Protection Clause of the Constitution’s 14th Amendment.
In his historic announcement he wrote:
“A marriage ban written into state law broadcasts the state’s view that same-sex couples and their children are second-class families, undeserving of the rights and protections offered to opposite-sex couples. It creates a stigma that pervades society, encouraging individuals to harass or belittle even their loved ones because of pressures brought by their community. And it harms relationships between family members by perpetuating a destructive notion that some individuals—and some children—should be shown less love and support simply because of who they are. That is a view the Department of Justice flatly rejects. And with our brief, we will make clear that the United States stands firmly on the side of equality.”
Holder takes pride in the fact that two heterosexual, African-American men — namely, President Barack Obama and he — have emerged as strong political proponents of equal rights for LGBT Americans in the 21st century. He provides a blueprint for what must be done to solidify the progress already made for gays and lesbians and to expand those rights fully to transgender Americans. Holder sheds light on conservative tactics that use “religious freedom” as a way to undermine that progress, and he warns against complacency in the fight for civil rights for LGBT people by reminding us of how women’s reproductive freedoms and the Voting Rights Act have both endured backlash more than a generation after they were first enacted.
The attorney general recalls the landmark 1967 Supreme Court case of Loving v. Virginia, which ended miscegenation laws forbidding marriage between blacks and whites, and tells The Advocate that the fight for LGBT equality is the natural, evolutionary next step in the civil rights movement.
Quoting Mildred Loving, the plaintiff in that watershed case, Holder says, “That’s what Loving, and loving, are all about.”
The Advocate: I want to begin with the announcement from your office outlining the federal brief you filed with the Supreme Court. You wrote that “denying them the right to marriage serves only to demean them and their children, to degrade the dignity of their families and to deny them the full free and equal participation in American life to which every citizen is entitled.” That’s deeply emotional. It seemed to relay a deeply humanistic understanding of what it means to be gay, that feeling of otherness that is always and everywhere present in our lives. So I want you to speak about this case. I want you to speak to your decision a few years ago not to defend DOMA, and your decision now to go further and support what almost appears to be an expansion of the Equal Protection Clause.
Eric Holder: Let me first speak as a lawyer. It is the Obama administration’s view that bans on same-sex marriage by the states are unconstitutional and they violate the Equal Protection Clause of our Constitution. I could go through all the legal reasons why that is so, but what underlies that is the notion that we are brothers and sisters, that we are all Americans. We have the same desires, we have the same fears, and we should be treated the same in the eyes of the law.
This is something the United States has evolved on. When I started as attorney general in 2009 there were only two states that recognized same-sex marriage. Now there are 37. The Supreme Court has an opportunity to make that the law of the land, and our friend of the court brief will say that, and say that these state bans are simply inconsistent with who we say we are as a nation.
We could continue to talk about this in terms of theory and the law, which is obviously important, but on a personal level this is about people. And it’s about families.
I have a folder of pictures of DOJ employees — members of DOJ Pride, our LGBT organization — and it’s pictures of their families, them having babies, on their way to their weddings, and celebrating their marriages. And in a fundamental way this is what this struggle is all about. It’s about human beings, my fellow employees, my colleagues. It’s about doing things that are consistent with who we say we are as a nation.
It’s taken us to the 21st century to get to this point, but I’m proud of where we are as an administration. I’m proud of where I am as attorney General of the United States. And I’m proud of where I am as an African-American man.
I think it’s wonderfully surprising — if not slightly ironic — that the greatest political proponents for equal rights for gay and lesbian Americans are two heterosexual African-American men, namely you and President Obama. The arc of the moral universe has bent significant in the past years. Can you tell me why this is important to you personally, not just professionally? Have you, prior to becoming attorney general, had some transformational moment of your own? Did you have family and friends who were gay before you came into this office?
Of course, I had family members and friends who are gay. Everybody would answer yes to that question if they answered the question truthfully. I had an uncle, Uncle Sonny, one of the best guys in my life. The first man I ever saw who drove a sports car, an MGB. It was the coolest thing in the world. He was near and dear to me and he was gay. We’ve all had people in our lives — with a positive influence in our lives — who are gay or lesbian. I was born in 1951. I experienced the civil rights movement. The movement that we’re talking about today for same-sex marriage rights — which is a part of the larger gay and lesbian fight for equality — that is the civil rights struggle for our time. This is the fight to make real the promise of America for all Americans, regardless of their sexual orientation.
It seems that at the heart of the American experiment, there has always been a fractured understanding of whom the phrase “We, the people” actually includes. Do you see the gay rights movement as being distinct from the civil rights movement?
I see it as a logical extension of the civil rights movement, but I wouldn’t restrict it to the civil rights movement of the 20th century. “We, the people” did not include women originally. It did not include African Americans. And it certainly did not include, in the fullest sense, gays and lesbians. So there has been a progression.
I think as attorney general, it is incumbent upon me to use the power that I have in this office, especially in the service to a president who shares my worldview, to expand that notion of who “We, the people” actually are.
One of the tactics of the conservative right has been to invoke religious exemptions as a way of denying gay Americans equal protection and equal access. We’ve also seen this as a skillful tactic in the fight for women’s contraceptive rights, most notably — and recently — in the Hobby Lobby Supreme Court case. From a legal perspective, does “religious freedom” present a challenge to federal protection of gay and lesbian Americans? If so, how? And how do you expect that this will play out in the coming years?
I can’t predict what tactics might be used to try to counter the position that we are going to espouse, and what I hope the court will ultimately adopt, but there doesn’t seem to me to be an inconsistency between a person expressing their strongly felt religious views and recognizing the humanity of somebody because of their sexual orientation. I don’t see the tension there. Which isn’t to say that there won’t be some people who will try to use a religious reason for not recognizing what I hope the court will say in making an equal-protection finding — but we’ll deal with that. If not me as attorney general, my successor or her successor will deal with that.
The nation is in a fundamentally different place than it was 20 years. The nation is in a fundamentally different place than it was even six years ago. There has been an evolution. As I talk to my children about same-sex marriage, about gay rights, they don’t understand what the controversy is, why this is a big deal. They’ve been raised in a fundamentally different way. My kids were born in the mid-to-late ’90s, and I think the country has evolved and I think that next generation, my children’s generation, they will look back on all that’s going on now and wonder what was that all about? What was the controversy all about?