Democratic U.S. House members pushing for an end to the Defense of Marriage Act have renewed their request with House Speaker John Boehner (R-Ohio) for a briefing on his defense of the anti-gay law in court.
In a letter dated Sept. 26, Rep. Jerrold Nadler (D-N.Y.), the sponsor of DOMA repeal legislation, and Rep. John Conyers (D-Mich.) as well as gay Reps. Barney Frank (D-Mass.), Tammy Baldwin (D-Wis.), Jared Polis (D-Colo.) and David Ciciiline (D-R.I.) seek a meeting to address concerns about defending DOMA.
“As Members who believe that DOMA is unconstitutional and support the President’s decision to stop defending it, we believe that the law is not factually or legally justifiable and were interested in hearing what arguments might possibly be made in its defense,” the lawmakers write.
The letter states all interested House members should be able to attend the briefing and that it could be conducted by outside counsel undertaking defense of DOMA on behalf of the House.
In response to the letter, Boehner spokesperson Michael Steel said, ”Following the Department of Justice decision to stop defending a law passed by strong bipartisan majorities in Congress, the Bipartisan Legal Advisory Group voted to retain counsel to defend the law.”
Nadler sponsors the Respect for Marriage Act, legislation pending before the House that would repeal DOMA. The other lawmakers who signed the letter are co-sponsors of the legislation.
Lawmakers had previously requested a briefing from Boehner’s office on the costs of defending DOMA in an April 4 letter. But according to Sept. 26 letter, despite this request, a briefing never took place.
The Obama administration in February declared that DOMA, which prohibits federal recognition of same-sex marriage, is unconstitutional and announced it would no longer defend the anti-gay law in court.
Following a party line 3-2 vote of the Bipartisan Legal Advisory Group in March, Boehner directed House General Counsel Kerry Kircher to take up defense of DOMA in the administration’s stead. The House has since hired private attorney Paul Clement, a former U.S. solicitor general, for assistance in defending the statute.
The lawmakers’ most recent letter to Boehner focuses on the arguments that House attorneys have made in defense of DOMA. Some have been challenged as factually incorrect or a distortion of research.
In one such example, Lisa Diamond, a psychology professor at the University of Utah, filed an affadavit in August stating that the House in a legal brief in defense of DOMA “completely misrepresented” her research findings on sexual orientation.
“The United States House of Representatives should not be making harmful and unreasonable arguments that demean its credibility, and that of the American people,” the lawmakers write. “It has been fifteen years since the Congress enacted DOMA, and the materials and arguments that BLAG is making on behalf of the House do not withstand the test of time or scrutiny.”
Numerous lawsuits are pending in federal court challenging the constitutionality and the House has undertaken defense of each of them. The case of Windsor v. United States, filed by ACLU, is pending before U.S. District Court for the Southern District of New York.. The case of Pedersen v. U.S. Office of Personnel Management, while was filed Gay & Lesbian Advocates & Defenders, is before the U.S. District Court in Connecticut.
The cases of Gill v. U.S. Office of Personnel Management and Commonwealth of Massachusetts v. Department of Health & Human Services are pending before the U.S. First Circuit Court of Appeals.