April 5, 2011 | by Chris Johnson
Lawmakers press Boehner on DOMA defense costs

Rep. Jerrold Nadler (Blade photo by Michael Key)

Lawmakers sponsoring legislation that would overturn the Defense of Marriage Act are seeking a briefing from U.S. House Speaker John Boehner (R-Ohio) on the costs and other matters relating to defending the anti-gay statute in court.

In a letter dated April 4, the House members note Boehner’s decision to direct House general counsel to defend DOMA against litigation — following the Republican-controlled Bipartisan Legal Advisory Group’s vote in March to take such action — and say they don’t support the move to defend the law.

“As Members of Congress who have long agreed that DOMA is unconstitutional, we do not support the continued defense of this law in the courts,” the lawmakers write. “Just last week, we reintroduced our bill to repeal DOMA — H.R. 1116, the Respect for Marriage Act – and sincerely hope that you will work with us to repeal the law rather than prolong it through litigation. As of now, however, you have signaled your intent to defend DOMA in the courts rather than reconsider it in the Congress.”

The signers of the letter are Rep. Jerrold Nadler (D-N.Y.), the lead sponsor of DOMA repeal legislation and Rep. John Conyers (D-Mich.) as well as the four openly gay members of Congress: Reps. Barney Frank (D-Mass.), Tammy Baldwin (D-Wis.), Jared Polis (D-Colo.) and David Cicilline (D-R.I.).

Additionally, the lawmakers ask the speaker for a briefing to answer questions about Congress’ role in defending the law.

“Among other things, we are interested in a status report on who will be representing the House, estimates regarding the cost and length of proposed litigation efforts, the anticipated role of the House in litigation (i.e., intervenor or amicus curiae), and your assessment regarding the likelihood of success on the merits,” the lawmakers write. “If you or House General Counsel already have arranged for representation by outside counsel, we would welcome and appreciate their participation in this briefing.”

According to the letter, the deadline is April 18 for the House to move to intervene in one of the pending cases challenging DOMA: Windsor v. United States, which is pending before the U.S. District Court of Southern District of New York. The lawmakers asks Boehner for a briefing on issues related to DOMA defense before this date.

A Beohner spokesperson didn’t respond on short notice to respond to Washington Blade’s request to comment on the letter.

The House took up defense of DOMA after President Obama on Feb. 23 announced that he determined the law was unconstitutional and U.S. Attorney General Eric Holder informed Congress the administration would no longer defend the law in court. The Justice Department’s decision to drop defense of DOMA gave Congress the option to take up defense of the statute.

Passed by Congress in 1996, DOMA has two parts: one that prohibits the federal government from recognizing same-sex marriage and another that allows states not to recognize such marriages performed in other jurisdictions.

As a result of the component of DOMA known as Section 3, married same-sex couples cannot participate in federal programs. For instance, they can’t file joint federal income faxes, receive spousal benefits under Social Security or obtain exemptions of the estate tax law upon the death of one of the spouses.

Download a copy of the letter here.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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