Can We Please Stop Picking on Attorneys General Who Defend Gay Marriage Bans?

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June 3 2014 1:48 PM

Can We Please Stop Picking on Attorneys General Who Defend Gay Marriage Bans?

Florida Attorney General Pam Bondi
Florida Attorney General Pam Bondi speaks at the 2012 Republican National Convention.

Photo by Mark Wilson/Getty Images

On Monday, the LGBTQ community expressed renewed outrage over Florida Attorney General Pam Bondi’s decision to defend her state’s gay marriage ban. Bondi actually filed her brief back in May, but this week she took the unusual step of standing by her decision in an oddly apologetic press release. That’s what has the community so riled up—the fact that Bondi dared to defend her legal stance that Florida’s laws comport with the federal constitution.

In a year when multiple attorneys general on the left and right have written off their states’ marriage bans as blatantly unconstitutional, it’s easy to criticize Bondi for standing by Florida’s. (Many have also harped on the fact that Bondi, who has been married two or three times, praised the “traditional definition of marriage” and asserted that gay couples lack “family continuity” in her brief.) Bondi, though, is really just doing her job. There are plenty of other reasons to criticize her tenure, including her horrifying plan to speed up executions, coupled with her recent shocking dereliction of duty. But this is one area in which her arch conservatism aligns quite neatly with the duties of her position.

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Within the next year or so, the Supreme Court will probably rule that state-level gay marriage bans are unconstitutional. As Justice Antonin Scalia presciently noted, that’s the overwhelming suggestion of United States v. Windsor, in which the court found that the Defense of Marriage Act “violate[d] basic due process and equal protection principles.” Until that point, however, attorneys general like Bondi are free to interpret Windsor as a federalism opinion—that is, a declaration that states must be free to pass their own marriage laws. Yes, these arguments are going to sound retrograde and insulting. (Bondi’s brief suggests that only straight couples can create “stable and enduring family units” and dismisses the “stigmatization and emotional harm caused by the marriage laws” as basically trivial.) That’s because in 2014, the only remaining non-religious arguments against gay marriage are either laughably bizarre or downright derogatory.

But Bondi’s inability to make an anti-gay argument that passes the smirk test is really just proof of how close the marriage equality movement is to victory. There’s no use, at this late date, in lambasting attorneys general who swim against the tide—especially when they do so this meekly. Bondi is going to lose in court, and Florida’s marriage ban will soon be overturned. In the meantime, Bondi might as well throw her best arguments at the wall. It’s clear, by this point, that none of them will stick. 

Mark Joseph Stern is a writer for Slate. He covers science, the law, and LGBTQ issues.

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