A U.S. House panel on Wednesday voted along party lines to direct general counsel to defend the Defense of Marriage Act in court following President Obama’s announcement that his administration would no longer defend the statute against litigation.
In a statement, House Speaker John Boehner (R-Ohio) said the Bipartisan Legal Advisory Group, which he convened last week after the president’s announcement, had come to the conclusion to direct the House General Counsel to defend DOMA after the Wednesday meeting.
“Today, after consultation with the Bipartisan Leadership Advisory Group, the House General Counsel has been directed to initiate a legal defense of this law,” Boehner said. “This action by the House will ensure that this law’s constitutionality is decided by the courts, rather than by the President unilaterally.”
The five-member Bipartisan Legal Advisory Group consists of the speaker, the majority leader, the majority whip, the minority leader, and minority whip.
Michael Steel, a Boehner spokesperson, said the panel voted 3-2 to direct the House General Counsel to take up defend of DOMA, but had no information on any discussion that took place beforehand.
Boehner as well as House Majority Leader Eric Cantor (R-Va.) and House Majority Whip Kevin McCarthy (R-Calif.) voted in favor of directing counsel to defend the statute, while House Minority Leader Nancy Pelosi (D-Calif.) and House Minority Whip Steny Hoyer (D-Md.) voted against such action.
Passed by Congress in 1996 and signed into law by then-President Clinton, DOMA prohibits the federal government from recognizing same-sex marriages and providing married gay couples with the federal benefits of marriage.
Last month, U.S. Attorney General Eric Holder announced that the Obama administration would no longer defend DOMA in court and sent a letter to Congress informing lawmakers of the Justice Department’s decision. The move left the decision of whether to continue defense of DOMA in court to Congress.
Litigation filed against the statute in the Second Circuit — where there’s no precedent for laws related to sexual orientation — allowed the administration to conclude that DOMA is unconstitutional and to call on the court to examine the law with heightened scrutiny.
In a statement, Pelosi denounced the panel’s decision to take up defense of DOMA in court and called the statute “discriminatory” as well as “unfair and indefensible.”
“Since its proposal and passage, this legislation has raised constitutional questions and has been viewed as a violation of the equal protection clause,” Pelosi said. “The House should not be in the business of defending an unconstitutional statute that is neither rational nor serves any governmental interest. DOMA actually discriminates against American families.”
Pelosi said the defense of DOMA would sap the U.S. government of “hundreds of thousands of taxpayer dollars, if not more” at a time when fiscal resources are limited.
“Pursuing this legal challenge distracts from our core challenges: creating jobs, strengthening the middle class, and responsibly reducing the deficit,” she said. “And that is why I voted against this action today.”
Joe Solmonese, president of the Human Rights Campaign, also criticized the panel for voting to take action to defend DOMA.
“Apparently, the Republicans’ jobs plan is a full employment project for right-wing lawyers bent on defending discrimination,” Solmonese said. “With today’s vote, Speaker Boehner has made clear that an anti-equality agenda trumps helping American families in tough economic times, including loving and committed couples who are legally married in their states.”
But Casey Pick, programs director for Log Cabin Republicans, said Boehner’s decision to defend DOMA after consulting with the panel is “entirely appropriate.”
“While Log Cabin Republicans firmly believe that DOMA is an unconstitutional intrusion on states’ rights and a violation of individual liberty, we agree with the speaker that the constitutionality of this law should be determined by the courts and not by the president unilaterally,” she said.
Pick said “nobody should be surprised that Congress has decided to exercise its legal right, and some would say duty” to defend DOMA given how controversial same-sex marriage is at this time.
“We are confident that this law will ultimately be overturned despite any defense presented by House Counsel, and will continue to work with our allies in Congress to advocate for legislative repeal,” she said. “With that decided, it is critical that Congress not waste anymore time on the president’s efforts to distract Republicans with divisive social issues, and instead return to working on the issues that matter most: jobs and the economy.”
A Democratic aide, who spoke on condition of anonymity, said Democrats on the panel pushed back on the decision to intervene on behalf of DOMA before the vote took place.
The aide said Boehner’s statement is misleading becaues it implies the panel held a bipartisan vote in favor of defending DOMA when in fact Pelosi and Hoyer “forcefully argued against the House intervening in these cases.”
According to the aide, Pelosi and Hoyer pressed General Counsel Kerry Kirchner on how much intervening to defend the statute in court would cost the U.S. government.
“General Counsel Kerry Kirchner would only say it would ‘not be inexpensive,'” the aide said. “Mr. Kirchner noted that there are currently at least 10 cases and he does not have the in-house resources to deal with that many cases as he has a staff of five with one lawyer currently on maternity leave.”
The aide said Kirchner told the panel he believed the House intervention in the DOMA case would take a minimum of 18 months because litigation could continue for years before the U.S. Supreme Court hears one of these cases.
“Mr. Kirchner also laid out that the Reagan Administration chose to no longer defend 5 laws in the 1980s,” the aide said. “Clearly, the Republicans were fine with a Republican President choosing not to defend statutes passed by the Congress.”
According to the aide, Pelosi repeatedly pushed back on assertions that the administration was deciding the constitutionality of DOMA by declining to defend the law in court.
“She noted that judicial review was continuing and that a number of groups were filing pro-DOMA briefs in the cases so there was no need for the House to intervene,” the aide said. “And that the administration was still enforcing the law.”
In response, a Republican aide, who also spoke on condition of anonymity, called the Democratic aide’s account of the discussion that took place “silly.”
The GOP aide took issue with the Democratic aide’s assertion that Republicans were fine when President Reagan declined to defend laws in court against litigation.
“Republicans didn’t have the majority in the House during the Reagan administration,” the GOP aide said. “That comparison doesn’t even make sense.”
Additionally, the Republican aide also said decisions haven’t yet been made on the cost and duration of any potential DOMA cases.