Boehner Will Defend DOMA in Court

In a statement on March 4, House Speaker John Boehner, an Ohio Republican, said he will convene the Bipartisan Legal Advisory Group –– made up of the top three GOP House members and the top two Democrats –– to develop a plan for defending the federal Defense of Marriage Act against court challenges.

On February 23, Attorney General Eric Holder announced the Obama administration had concluded that DOMA’s denial of federal recognition to legal same-sex marriages should be subjected to a heightened level of judicial scrutiny, under which the law would be found to violate the equal protection rights of the couples involved.

The Department of Justice, Holder said, “will cease defense of Section 3,” the portion of DOMA barring federal recognition.

“It is regrettable that the Obama administration has opened this divisive issue at a time when Americans want their leaders to focus on jobs and the challenges facing our economy,” Boehner wrote, in a posting on the House speaker’s website. “The constitutionality of this law should be determined by the courts –– not by the president unilaterally –– and this action by the House will ensure the matter is addressed in a manner consistent with our Constitution.”

In a press release issued shortly after Boehner’s statement, Democratic Minority Leader Nancy Pelosi of California said, “President Obama took a bold step forward for civil rights and equality when he announced that the federal government would no longer argue to uphold the Defense of Marriage Act in court. This legislation has long raised constitutional questions and has long been viewed as a violation of the equal protection clause. That’s why I voted against it on the floor, and that’s why I oppose Speaker Boehner’s effort to put the House in the position of defending this indefensible statute.”

The 1st Circuit Court of Appeals is currently hearing an appeal filed last year by the Justice Department of victories by the state of Massachusetts and same-sex couples married there in lawsuits against the statute. The DOJ’s new position on the appropriate level of judicial scrutiny that should be applied to DOMA came in response to more recent legal challenges filed in New York and Hartford.

The Human Rights Campaign turned the tables on Boehner’s charge that the administration had taken its eye off the ball regarding jobs in a written release titled “House Republican Leadership Violates Jobs Pledge by Taking Steps to Take up Defense of Discriminatory DOMA Law.” A release from the Log Cabin Republicans made the same point.