June 29, 2012 at 5:57 pm EDT | by Chris Johnson
BREAKING: Boehner appeals DOMA cases to Supreme Court

House Speaker John Boehner’s (R-Ohio) attorneys on Friday formally appealed to the U.S. Supreme Court an appeals court decision determining the Defense of Marriage Act was unconstitutional.

Drew Hammill, spokesperson for House Minority Leader Nancy Pelosi (D-Calif.), told the Washington Blade on Friday afternoon Republicans had notified Democratic leadership that House counsel filed an appeal to the Supreme Court.

The court ruling that was appealed was the First Circuit Court of Appeals decision in the cases of Gill v. Office of Personnel Management, which was filed by Gay & Lesbian Advocates & Defenders, and Commonwealth of Massachusetts v. Department of Health & Human Services. On May 31, the appellate court issued a decision that Section 3 of DOMA, which prohibits federal recognition of same-sex marriage, was unconstitutional as a result of both cases.

In a statement, Pelosi slammed Boehner for continuing to assert the constitutionality of DOMA, saying the appeal is a decision that will “waste more taxpayer funds to advance a position rejected by four different courts and to defend discrimination and inequality before the highest court in the land.”

“Democrats have rejected the Republican assault on equal rights, in the courts and in Congress,” Pelosi said. “We believe there is no federal interest in denying LGBT couples the same rights and responsibilities afforded to all couples married under state law. And we are confident that the Supreme Court, if it considers the case, will declare DOMA unconstitutional and relegate it to the dustbin of history once and for all.”

Boehner’s office didn’t immediately respond to a request to comment on the appeal.

In the filing, Boehner’s attorneys present two questions to the Supreme Court: (1) Whether Section 3 of the Defense of Marriage Act violates the equal protection component of the Due Process Clause of the Fifth Amendment; and (2) Whether the court below erred by inventing and applying to Section 3 of the Defense of Marriage Act a previously unknown standard of equal protection review.

“As the First Circuit recognized, this case calls out for this Court’s review,” the filing states. “The court of appeals has invalidated a duly-enacted Act of Congress and done so even though it acknowledged both that DOMA satisfies ordinary rational basis review and does not implicate heightened scrutiny. In the established world of equal protection law that result should have been impossible.”

The filing also cites a separation of powers issue as the result of the Obama administration no longer defending DOMA in court as it continues to enforce it and leaves the House to defend the law.

“Only this Court can settle this matter definitively,” the filing states. “Unless and until this Court decides the question, the executive branch will continue to attack DOMA in the courts, while continuing to enforce it, thus creating more potential litigation for the House to defend. This Court and this Court alone has the power to settle this question and redirect controversy over this important national question to the democratic process.”

Additionally, the filing argues the First Circuit ruling conflicts with Baker v. Nelson, a case related to same-sex marriage that the Supreme Court declined to hear in 1972.

Now that Boehner’s attorneys have filed an appeal, there will be 30 days for plaintiffs to file an opposition to the motion. It would then be left to the court to decide whether to grant cert, or hear the case. There isn’t a timeline for that, but it won’t happen while the court is in summer recess.

LGBT advocates also had harsh words for Boehner over his continued defense of DOMA.

Evan Wolfson, president of Freedom to Marry, called Boehner’s appeal “shameful” and said it’s time for him to “respect basic American values of equal protection under the law.”

“Same-sex couples have waited long enough for the federal government to treat their lawful marriages with the respect and fairness every American wants and deserves, especially in tough economic times,” Wolfson said. “Judges appointed by Presidents Nixon, Reagan, Clinton, ‘Bush 1,’ and ‘Bush 2,’ among others, have all agreed that there should be no ‘gay exception’ to the normal practice of the federal government honoring the marriages celebrated in the states, and providing the 1138-plus federal protections and responsibilities accorded all other married couples.”

In February 2011, the Obama administration announced it would no longer defend DOMA in court. After the decision, Boehner convened the House Bipartisan Legal Advisory Group, which voted 3-2 on a party-line basis to take up defense of DOMA in the administration’s stead.

To assist House general counsel Kerry Kircher in defending DOMA, Boehner hired Paul Clement, a former U.S. solicitor general under President George W. Bush. The cost cap to pay for House expenses in defending the law was set at $1.5 million.

Meanwhile, the Justice Department has filed legal briefs in favor of lawsuits against DOMA and sent Stuart Delery, who’s gay and the Justice Department’s acting assistant attorney general for the civil division, to make the case against the law in oral arguments.

Six federal courts have found that DOMA is unconstitutional as a result of cases filed by LGBT advocates. The ruling against DOMA in the First Circuit was the highest court to date to weigh in against the anti-gay law.

A White House spokesperson deferred comment to the Justice Department, which declined to comment.

NOTE: This article has been updated

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

  • Roberts will be the swing vote this time.

  • Can Boehner waste any more taxpayer money that he’s supposedly trying to not waste on big government along with not wasting any more of the justices time? He needs to get to the business of creating jobs and supporting business and families. Letting DOMA die a swift death will help that effort. I hope his constituents are voicing their discontent over how well he represents them and how he actually earns the salary we are forced to pay him.

    • Mac, Excuse me, I made a big mistake, the comment I left under your post was a total mistake, I meant to leave it under Peter Someone. Please disregard my message or comment to your post, your remarks I agree with and have no problem with them, please forgive me. I could not figure out how to remove them after I hit the post button but I do want to write this as my retaction. sorry.

  • I cannot think of another topic where science is thrown to the curb more than this one. The idea that “Gay people are born…” is scientifically totally inaccurate, yet totally accepted by liberal politics internationally.

    Darwin’s principle of Natural Selection would have to be thrown out the window if “Gay people were born…” The trait of homosexuality would have been selected naturally for extinction LONG ago, because homosexuals cannot reproduce.

    There have been a lot of “studies” put together with the express purpose of proving homosexuality, yet the bias at the outset of these “studies” precludes them from being scientific.

    Until it’s proven, the idea that homosexuality is inbred or genetic is just that, an IDEA. The fact that many people want to be nice to the people who CHOOSE to be homosexual is nice, but it is not a civil right by any means. A civil right has to do with a trait a person was born with over which they have no control, yet have also been discriminated against; traits like having darker skin, being ethnically Jewish, etc.

    The idea that homosexuality is a civil right automatically allows anyone to be a member of a “discriminated” group by claiming homosexuality. This is a political issue, not a civil right.

    African Americans, Jews, and others belonging genetically to discriminated groups of society should be very wary of this ability for people to now choose to become part of a group gaining special “civil rights.”

    • “A civil right has to do with a trait a person was born with over which they have no control…”

      Like religion?

      Whether it’s a choice or not is ultimately irrelevant. It’s not the government’s job to regulate love, or decide that some relationships deserve special rights, and deny it from others. That’s what it’s about – true equality.

      It’s true that gay people have the same “freedom” to marry people of the opposite sex – just like straight people, but that argument is silly – the “freedom” to marry who the government says is valid is ridiculous. It’s the same thinking that led to “black people have the same freedom to marry within their own race as white people”, and just as discriminatory.

    • Peter you are obviously a homosexual fighting with himself to be who he really is, because you have obviously chosen your alleged heterosexuality. If one chooses to be a homosexual, then one chooses to be a heterosexual. So at any moment, Peter you believe you could choose to be a homosexual and sexually be excited by a homoerotic sexual act? Thats very interesting. As a homosexual man, I did not wake up one day and say, A.) I can choose to be straight or B.) I can choose to be a homosexual and face a liftime of ridicule. I have tried to have sex with women and biologically things never worked. I beleive women are beautiful but find no sexual attraction. You do not choose that attraction, it is just a part of you. Only people who choose are those lucky people, or very sad in your case, who are bisexual who is stimulated by both sexs. Since you believe its a choice then you must be a bisexual who wants to be with men, but thinks he should be with a women. Thats not an option for me. Im sorry for you, I really am.

    • Never have I ever read a more IGNORANT comment than yours, and I’m not trying to offend, but it’s true. First of all, you show how little you know about the Theory of Natural Selection, and second, you don’t even know what CIVIL RIGHTS are. Homosexuality DOESN’T have to necessarily be a genetic trait for it to appear since child’s birth. Not every aspect of your sexuality is decided by genes alone, hormones also play a very important role, and the way in which you are raised; three areas scientists are exploring when researching the cause of homosexuality. This is why human sexuality is so complicated and cannot simply be divided in the simple straight-gay categories, as study shows MOST straight guys have homosexual tendencies that are suppressed for different reasons. Homosexuality doesn’t have just one cause, it is a combination of factors that, if combined in a specific way, causes the individual to manifest it. Other combinations can cause bisexuality or straight with certain homosexual tendencies. The fact is, human sexuality is anything BUT black and white.

      But perhaps the most ignorant part of your comment is when you say that civil rights are only for aspects of oneself that one does not choose. Well then, I ask you, what about religion? Should religious people then NOT be entitled to civil rights? Certainly your religious preference is something you were not born with. Even if homosexuality was a choice, there’s NO DOUBT AT ALL that homosexuals ARE entitled to civil rights under our constitution, because civil rights; ” include the ensuring of peoples’ physical and mental integrity, life and safety; protection from discrimination on grounds such as physical or mental disability, gender, religion, race, national origin, age, status as a member of the uniformed services, sexual orientation, or gender identity; and individual rights such as privacy, the freedoms of thought and conscience, speech and expression, religion, the press, and movement.” Civil Rights are not just for minority groups, they are for EVERYONE, as we are all human beings who deserve to be treated with RESPECT and DIGNITY and not be discriminated or suppressed by anyone.

    • …Yawn…that’s so 60’s. It’s getting cloudy outside.

    • If gays are born the same as hetero guys, and if gays make a conscious choice, that must mean that hetero guys make a conscious choice, too. At what age did you make the choice to be str8? Also,if choice is a determining factor in sexual preference, that must mean that choice is a human characteristic, in which case there should be no penalty for selecting from any of the choices presented.

    • Anyone who argues that gay people cannot reproduce is an idiot. Every gay friend I have who has children has BIOLOGICAL children. Gay people are fertile and have viable sperm and eggs. They reproduce every day. If you’re going to make reproductive health the issue then any woman who has been through menopause loses rights, anyone impotent or infertile loses marriage rights. Period. There are far more straight people who can’t reproduce.

      Also, Darwinian evolution does not have anything to do with every trait of every species that isn’t helpful to survival of the species disappearing. That’s foolish. You might as well state that anyone with any “recessive” trait is in the same boat. No blondes, no lactose intolerant people…the list isn’t worth bothering with. People are still born with appendix.

      Also, how do you know there isn’t a trait brought to bear that isn’t physically evident?

      The topic throwing science to the curb could be, for instance, creationism.


    • You are a sick individual. Mine works as well as yours. I can reproduce and have.

      What you people don’t understand is simple. Sure I can make a choice and live a miserable life with the opposite sex (no offense ladies but ya’ll are high maintenance) and reproduce . But my choice is happiness… “life, liberty, and the pursuit of happiness…”

      I chose my happiness over more babies. I chose not to lie like you recommend. I love my partner and who happens to be male.

      You people bore me with your backwoods twisted ideas. Like the constitution was intended to grow up with its country.

      I am embarrased you would even still write and think this way.

      Bless your heart.

    • Gay people do indeed have children; 20% are raising children according the Williams Institute’s analysis of census data. All families need protection. The canard that “gay people can’t reproduce” is used against us to attempt to make our families less acceptable than families of straight people. It doesn’t wash anymore.

    • Rev. Dana Daniell July 6, 2012 at 3:11 am
      Excuse me, I’m sorry that you were born heterosexual, and that you are not considered, “Special”, God bless your normal lifestyle, woops, I forgot, you already get all the advantages anyway. My Bad!, Secondly, there is more to life and marriage than reproduction. Marriage has changed in the last hundred years, we don’t marry for the purposes of maintaining our family property, or for the purposes of keeping our gene line pure, or even for reproduction, Marriage is viewed even by people like yourself as a commitment between two people who LOVE each other and by doing so create the family they choose to create. Thirdly, Mr. Scientist, Judaism is a chosen religious practice, not a race of people that you are born into, there is no “Jewish Gene” either. Before you post your opinions, do your homework first, learn the difference between races, and religions. I fully support the right to your opinions, they don’t bother me, just get your facts right.

      Comment awaiting moderation.

    • Actually, there is an evolutionary advantage to having a gay portion of the population.. In pre-historic times, the presence of additional adults with no children of their own to care for were freer to go out and hunt and gather more food for the group, thus improving the quality of life for all. They were also available as extra caregivers for others’ children.

    • And you are an idiot, who should sit down before you hurt yourself. NO ONE would actively “Choose’ to be gay. It’s a lifestyle that places gay and lesbian people at the mercy of asshats like you, who would do us harm, fire us from jobs, make us lose our friends, or loved ones, or deny us every possible right that heterosexuals have. It’s an EXTREMELY difficult lifestyle that no single person would CHOOSE to be part of. While there are people who, for whatever reason, decide that they cannot be part of the heterosexual world, (IE: abused women, men, etc) that does NOT mean that there are not gay people who are born gay. There is a ton of evidence to prove that it is actually VERY genetic. The problem is that bible-thumping idiots tend to spit in the face of evidence. The funny thing is that no matter WHAT evidence is shown, you people wouldn’t accept it anyways. Christ HIMSELF could come down from the heavens, and tell you that gay people are BORN this way, and you’d call him the antichrist before you accepted that this was truth. Everything about your post screams bigotry, hate, and intolerance. And then you blame it all on ‘liberals’.
      When you preach your bible crap to everyone, it’s freedom of speech. When you try to force it on everyone else, as FACT, that branches into religious TYRANNY. We (Gay people) do not care if you personally accept us. We do not expect churches to ‘transform’ their views of homosexuality. We only expect the GOVERNMENT to say “Hey, regardless of what everyone thinks, when it comes to your RIGHTS, you will be treated like everyone else. You will not be told that your relationship is not valid. That you do not have the same rights as everyone around you.”

      If the church and its followers do not accept that, then fine. No one cares. Freedom of religion says that a religious group can decide to remain uneducated and as bigoted as they like regarding gay rights. However, the GOVERNMENT has an obligation to its people, to provide life, liberty, and the ability to pursue happiness. IT DOES NOT MATTER WHAT YOUR BIBLE SAYS ABOUT IT. So stop throwing it in at every possible turn!!! NO ONE CARES! The bottom line is, your ‘defense’ of marriage act has fewer and fewer defenders every year. Every census proves that is only a matter of time before the government has to grant gay and lesbian citizens the SAME rights as everyone else. Wether you idiotic bigots like it or not.

  • I have no idea what Peter Burkey’s little exercise in illogic has to do with equal justice under law for all Americans, but he seems to be suggesting (let me be generous) that because in his view gay people “choose” to be gay they are therefore not entitled to equal rights. These red herring commentaries/screeds pop up everywhere the discussion of marriage equality appears, and I expect people such as Burkey have their “Google Alerts” locked and loaded to fire off another bunch of blather any time the words “gay marriage” pop up in their e-mail alert.

    Of course no sane homosexual would agree s/he “chose” to have a sexual orientation drawing him/her to those of the same sex. The only “choice” is in whether or not to accept one’s sexual orientation, to live in harmony with one’s self or in conflict as Burkey seems determined to foment. Inquiring minds have to wonder: Why is someone so clearly anti-gay reading a gay newspaper? To be a well-informed anti-gay activist? Or just plain prurient interest? You know, to find yet more reasons to hate himself?

    • John, I agree with nearly all of what you write, with the exception of one thing: my life as a person who is attracted to the same sex has been fantastic, so I, even as a sane person, would surely choose this life if given the choice. I know you don’t mean to do so, but your “who would choose such a life” comment is nearly as offensive/inaccurate as people on the ones coming from the other side.

  • Well I’m glad it’s going to the Supreme Court, and optimistic that they’ll have the sense to throw it out. If no one took it to SCOTUS, we could be fighting every little case forever. Good luck to us.

  • Peter: Some straight people cannot reproduce either. Should we “…select them for extinction,” too? And as Diane Sawyer once said in an interview to some politician in Florida: “So, tell me about when you chose to be straight.” Regardless of how one is born, I’ve never met anyone who chose his/her sexuality.

  • And there are still A**hole gays who support the GOP.

  • …someone please publish the names of the bigots who voted for Doma in Congress.

  • Why did the first circuit not rule on Full Faith and Credit ? Are they trying to protect a NH
    ruling by Souter that set marriges in Mexico as legal !!!

  • What? No comment from the apologists over at Log Cabin? So does Boehner’s boy, R. Clarke Cooper, still think the Speaker is “right” to continue his fight to deny equality to legally married Gay Americans? Now that six federal courts have affirmed the President’s view that DOMA is unconstitutional, it’s a lot harder to call it political gamesmanship on Obama’s part, isn’t it?

    Or maybe it’s simply a timing thing. When you put yourself forward as a gay advocacy organization and you are about to defend actions that are intended to maintain our second class status, it takes longer to craft something that doesn’t sound totally convoluted and pitiful. (Is that even possible?)

    Or maybe they finally have realized that the most prudent course for them is to shut up, get out of the way, and let others do the heavy lifting on DOMA repeal. It’s a shame when you think about how Cooper squandered their DADT cred trying to curry the favor of republican party operatives and leaders. LCR could have been an influential player in the ongoing fight had they stuck by their own “team.”

  • Well, PETER BURKEY …I clearly recall a Jewish person telling me that Judaism is a RELIGION, and faith has no genetics. After all, there are Jews living in nearly every nation and I am aware of the “mother’s womb” rule but I also know of people who have joined the Jewish faith halfway thru their lives, so lets just say that you truly f**ked up on that one. And YES ..I knew I was different all through my childhood and finally understood what it was as I grew into puberty, tried to suppress it because it was supposed to be “wrong”. Well, guess what??? I fell in love with another male and all that crap went flying out the window faster then a space rocket launch leaves earth. Think about it ..heterosexuality felt natural to you, homosexuality felt natural to me, so ..in either case, live and let live.

  • Peter – Peter – Peter! Where did you get your “scientific studies” information from? I did not choose to be gay. I tried to go “straight” and went through years of therapy to “change” and be “normal” and guess what? I’m GAY !! I have been since as far back as I can remember and will always be and nothing your or any so-called “scientific study” may say can change me. It is not a choice, any more than breathing, skin or eye color or being right-handed or tall or short, fat or skinny! It just IS !! Even animals have homosexual feelings. Did you also choose to be straight? That’s absolutely ridiculous.
    Who made you the “expert” or our “judge”? There have been gays since the first humans, born to heterosexual parents. So what? I’m living my own truth, not that of some else. We are not all the same. No one wants to change you, so why can’t you just accpet us as we are – naturally ?
    Get used to it!!! Chanel your energy and effort into something else! Get off our backs!!

  • I’m always amused when I read that someone has said that gay people cannot reproduce. My penis did not fall off when I realized i was gay, and if i chose to reproduce there are mulitple ways to achieve that feat. My decision to reproduce or not reproduce is in fact a choice. My sexuality has no choice. It is who I am and it is what I accept. Being Jew is genetic? Please tell me you’ve chosen not to breed. Your thoughts are a bit scary.

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