Suthers responds to criticism of support for Defense of Marriage Act

Republican Colorado Attorney General John Suthers Saturday explained to critics again why, on behalf of the citizens of the state, he joined a Massachusetts gay marriage case. Progressive groups have accused Suthers of overreaching in support of an anti-gay politics agenda and have ridiculed his explanations for the move as waffling and unconvincing. Attorney General’s office spokesman Mike Saccone told the Colorado Independent there’s nothing inconsistent about Suther’s position and that Suthers penned an op-ed for the Denver Post in response to criticism.

“Suthers believes that, in this case, the federal government is acting within the authority it is granted through the commerce clause,” Saccone said, dismissing criticism as a predictable product of state right-left politics. “None of that [criticism] comes as any surprise.”

From Suther’s op-ed:

[W]hether the Defense of Marriage Act is good policy is irrelevant to my legal position in that case. Congress has the authority to define who may receive benefits under federal programs. Massachusetts’ lawsuit seeks to conflate the proper role of state and federal governments. Massachusetts’ lawsuit also provoked the federal trial court to declare that Congress had “no rational basis” for defining marriage as between a man and a woman. Colorado’s voters, like Congress, have chosen to define marriage that way. To pretend that this suit poses no threat to Colorado’s constitution may serve Justice Dubofsky’s goal of implementing same-sex marriage through court challenges, but it is disingenuous. I admire Justice Dubofsky’s long-standing commitment to the political cause of same-sex marriage, but in advocating for it, she owes it to the people of Colorado to be more forthright.

It is not my job as Colorado’s attorney general to determine public policy when it comes to health care or same-sex marriage. That is the prerogative of the legislature and the voters. It is my job to protect federalism, the U.S. Constitution and the Colorado Constitution.

At the end of January, Suthers joined an amicus brief on the side of the federal government appealing a ruling striking down parts of the federal Defense of Marriage Act (DOMA). The ruling came when a federal judge agreed with groups who argued that DOMA unconstitutionally denied benefits to gay couples legally married in Massachusetts. The Denver Post reported that Suthers believed the case was relevant to Colorado because Colorado’s Amendment 43 bans gay marriage here and that rulings against DOMA could force Coloradans to recognize gay marriages performed in other states. Suthers joined with attorneys general from Indiana, Michigan, South Carolina and Utah in supporting the Obama Justice Department in the Massachusetts case.

That explanation came quickly under fire, however, prompting Suthers representatives to concede that the Massachusetts case didn’t directly concern the sections of DOMA that protect state’s rights to accept and reject the legitimacy of out-of-state marriages. Suthers critics gained authority last week when former Supreme Court Justice Jean Dubofsky published a scathing op-ed in the Denver Post stating that the case would have no bearing on the power of Colorado to reject marriages performed in Massachusetts and that, if Suthers was concerned about state’s rights, then he joined the wrong side of the case, that he should have supported Massachusetts and not the federal government.

Suthers weathered attacks last year when he joined GOP attorneys general in a case targeting the federal health care reform legislation backed by Obama and championed by Democratic lawmakers. His critics then said the suit was less about the law than about politics and a waste of Colorado resources. That suit and the reasoning behind it has gained traction in the months since and in some form is speeding its way toward the U.S. Supreme Court.

In the health care reform case, Suthers argued that the federal government was overstepping authority granted by the commerce clause. In the case of the Defense of Marriage Act, Saccone said, Suthers believes the federal government is acting within its authority.

“They’re both cases about federalism,” Saccone said. “There’s no inconsistency… It’s about defining proper and improper readings of the law.”


The original version of this post reported that the Suthers response was still in the works. We regret the error.

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