May 4, 2011 | by Chris Johnson
Holder defends decision to drop DOMA defense

U.S. Attorney General Eric Holder (Blade photo by Michael Key)

U.S. Attorney General Eric Holder endured a barrage of hostile questions from House Republicans Tuesday over the Obama administration’s decision to drop defense of the Defense of Marriage Act in court.

During an oversight hearing before the House Judiciary Committee, Holder defended President Obama’s determination that DOMA is unconstitutional in response to inquiries from GOP lawmakers amid other questions about the Justice Department’s role in preventing illegal immigration, prosecuting terrorist suspects and stopping child pornography.

Tough questioning for Holder particularly came from Rep. Jim Sensenbrenner (R-Wisc.), who recalled Holder’s Feb. 23 letter to Congress stating that the Justice Department would no longer defend DOMA in court and asked the attorney general simply, “Why’d you do it?”

Holder replied that litigation challenging DOMA in the Second Circuit — where there’s no legal precedent for laws related to sexual orientation — afforded the opportunity for the Justice Department to examine DOMA with heightened scrutiny and to determine the anti-gay law was unconstitutional.

“Applying the heightened scrutiny test, we did not think that the statute would pass constitutional muster, and as a result, I thought that we could not make reasonable arguments in defense of the statute — something that is done extremely rarely, but happens occasionally,” Holder said. “I recommended to the president that we not defend the statute and he agreed with that recommendation.”

But Holder’s answer apparently didn’t satisfy Sensenbrenner, who railed against the Justice Department for what he said was abandoning its duty by dropping defense of DOMA.

“Sexual preference has never been a protected class in any of our civil rights laws,” Sensenbrenner said.

In response, Holder noted that federal law anticipates that the executive branch may determine that some laws shouldn’t be defended in court and affords Congress the opportunity to take up defense of such statutes if the administration declines to defend them.

“The reasons for the determination were, as I said, this different standard and the fact that much has changed since the passage of the bill 15 years or so ago,” Holder said. “The Supreme Court has ruled that criminalizing homosexual contact is unconstitutional. Congress has repealed the ‘Don’t Ask, Don’t Tell’ policy.”

But Sensenbrenner observed that Congress has never taken action to repeal DOMA since the anti-gay law was enacted in 1996. Additionally, the Wisconsin lawmaker said the Lawrence v. Texas decision that Holder referenced was related only to the criminalization of homosexual acts and that “Don’t Ask, Don’t Tell” was a personnel issue in the Defense Department.

“DOMA does not deal with either of these two items,” Sensenbrenner said. “DOMA was an attempt to define for federal purposes that marriage is between one man and one woman, and 45 states in this country have also reached that conclusion — either through a constitutional amendment ratified by the people as was the case in Wisconsin or through statutory enactments by the legislature.”

Sensenbrenner’s remarks on DOMA are misleading in part because Section 3 of the statute has no impact on states where same-sex marriage isn’t available. The anti-gay law prohibits federal recognition of same-sex marriage only in jurisdictions where it’s available.

Rep. Jim Sensenbrenner (Blade photo by Michael Key)

Sensenbrenner added he would back defunding the Justice Department for the cost to the House of defending DOMA in court — a move proposed by House Speaker John Boehner (R-Ohio) last month after he hired former U.S. Solicitor General Paul Clement to take up defense of the statute.

“I certainly would support an effort to have the cost of Congress’ defending this provision … come out of the Justice Department’s appropriations, so that the message is sent down the street that an attorney general or president can’t willy-nilly decide that a law that they have voted against — if they’d been in Congress at the time — is unconstitutional,” Sensenbrenner said.

Holder replied that lower courts have also come to the conclusion that DOMA is unconstitutional and the notion that the Justice Department should lose funds over the decision to drop defense of the anti-gay law is “inappropriate.”

“The lawyers in the Department of Justice who would have worked on that case, believe me, have more than a full-time job, and they will have to use the time that might have been used in the DOMA defense — they will use it other areas,” he said.

The attorney general added Congress has the ability to approve funding for the expense of hiring Clement without reducing funds for the Justice Department.

Rep. Jerrold Nadler (D-N.Y.), the sponsor of DOMA repeal legislation, came to Holder’s defense during the hearing and said the Obama administration had no option but to determine the anti-gay law was unconstitutional following the 2003 Supreme Court decision striking down state sodomy laws in Lawrence v. Texas.

“I don’t believe that the administration had any choice in the matter at all by looking at the legal precedence,” Nadler said. “There had been no determination by any court, as far as I know, certainly by any circuit, of the proper standard of review after Lawrence. And if you look at the normal criteria for determining the standard of review that the Supreme Court has enjoined upon us as to what a suspect classification is … it meets all the tests, and you really had no choice but to go that route.”

Nadler added he hopes Congress doesn’t try to “start trying to intimidate” the Justice Department by threatening to restrict funds as a result of the department’s decision over DOMA.

Other Republicans on the committee also took jabs at Holder during their questioning for dropping defense of DOMA.

Rep. Trey Gowdy (R-S.C.), a freshman Republican who won as a Tea Party challenger in the 2010 election, asked if laws related to sexual orientation merited heightened scrutiny, why shouldn’t heightened scrutiny apply to laws on allowing cousins to marry, underaged marriage or polygamy.

“Since Lawrence, two courts of appeals have upheld a rational basis test for sexual orientation,” Gowdy said. “Why would you single out the one court of appeals that has applied a higher level of scrutiny, ignoring the two that apply to rational basis tests? That just strikes me as a political calculation and not a constitutional calculation.”

In response, Holder denied the decision the Justice Department made over DOMA had a “political component” and said the Supreme Court would ultimately have to address the issue of the anti-gay law’s constitutionality.

Michael Mitchell, executive director of the National Stonewall Democrats, told the Washington Blade after the hearing that he took offense to the suggestion that same-sex marriage is akin to the other unions Gowdy mentioned.

“Most people know there is a clear difference between those things and two loving, consenting adults who are willing to share their lives, and most importantly, take care of each other,” Mitchell said. “Apparently, love and commitment and ’til death do you part’ are not Republican values.”

House Judiciary Committee Chair Lamar Smith (Blade photo by Michael Key)

House Judiciary Committee Chair Lamar Smith (R-Texas), who last year sponsored a resolution condemning the federal court ruling finding California’s Proposition 8 was unconstitutional, expressed displeasure over Obama administration’s decision to drop defense of DOMA during his opening statement.

“I am concerned that in some cases, this administration may have placed political and ideological considerations above enforcing the law,” Smith said. “It seems the president’s personal, political views regarding [DOMA] may have trumped the obligations of the Department of Justice.”

Additionally, Rep. Dan Lungren (R-Calif.) chided Obama for dropping defense of DOMA after making no mention about doubts over its constitutionality during his 2008 presidential campaign.

“It would have been helpful if the president of the United States, as a constitutional law professor, during the time he was running for president, indicated that he had some constitutional questions about DOMA as he was going around the country saying he believes that marriage is between one man and one woman,” Lungren said.

As a chair of the House Committee on Administration, Lungren signed off on the House contract hiring Clement for a initial total sum cap of $500,000 and a blended rate of $520 an hour.

In response, Mitchell disputed the notion that Obama wasn’t fully disclosing his views in the 2008 presidential campaign and said Obama’s personal position on marriage has no bearing on the constitutionality of DOMA.

“By Rep. Lungren’s logic, the Republicans should have articulated in the midterm elections that they were going to focus solely on divisive social issues and the foisting of tax cuts on the wealthy instead of creating jobs,” Mitchell said.

Holder’s defense of the administration’s decision to drop legal defense of DOMA during the congressional hearing comes on the heels of comments he made to reporters last week backing Clement against criticism from LGBT people for taking up defense of the anti-gay statute.

“Paul Clement is a great lawyer and has done a lot of really great things for this nation. In taking on the representation — representing Congress in connection with DOMA, I think he is doing that which lawyers do when we’re at our best,” Holder reportedly said. “That criticism, I think, was very misplaced.”

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

6 Comments
  • Yeah, this is pretty comical by now because the conservatives/republicans are being some of the most manipulative weasels I’ve ever seen in my life. (I have nothing against republicans except their reactions to social issues, which are often monstrously anti-American.) The gay issue repeatedly brings out the worst in these conservatives, and it’s chilling enough that they act as if it’s the democrats who are reacting ideologically or emotionally on this issue: Think about that for a second. Just who is reacting IDEOLOGICALLY and EMOTIONALLY? — the anti-gay, period. That’s bad enough: Far worse is that Sensenbrenner comes off as uneducated when he refers to “sexual preference.” It’s called “orientation” and it’s inborn, and Sensenbrenner looks like an idiot, literally, when he (or anyone else like him) decides they’re going to be a stubborn “holdout” against prevailing medical opinion and the testimony of millions of gay people worldwide. When people question anorexia, depression or peanut allergies, particularly in kids, the parents go into defensive hysterics. It’s about time that we realize that questioning someone’s testimony on their own life and orientation is equally offensive and sickening.

  • Dear S.C. Christianist, bigot, Republican pervert, Gowdy, stop projecting your sexual fantasies with your daughter. The gays have better sexual practices than you and your pathetic Klan.

  • Pervert: An unusual or abnormal sexual act that is habitual

    Same-sex activity happens to be the very definition of what a pervert is; must you folks redefine every word in the English language just to lend the appearance of acceptability to your depravity?

  • Patrick in Texas

    Randy, bigotry is a perversion. Look it up. You’re an anti-gay pervert. The depravity appears to be your homophobia. Nice try though. LOL!! That was easy.

  • “Rep. Trey Gowdy (R-S.C.), a freshman Republican who won as a Tea Party challenger in the 2010 election, asked if laws related to sexual orientation merited heightened scrutiny, why shouldn’t heightened scrutiny apply to laws on allowing cousins to marry, underaged marriage or polygamy.”

    Throwing around illogical comparisons only makes you that more ignorant.

  • ““Sexual preference has never been a protected class in any of our civil rights laws,” Sensenbrenner said.”

    But Sexual Orientation is, nice try at mixing up the words.

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