Boehner: Look for Congressional Defense of DOMA

The Justice Department announced last week that it would not defend an anti-gay law from 1996 against challenges in federal court. But GOP Congressional leader John Boehner now says that the House of Representatives will probably defend the so-called "Defense of Marriage" Act (DOMA), Reuters reported on Feb. 28.

Under the provisions of DOMA, states may ignore marriages granted in other jurisdictions. Section 3 of the law defines marriage as a legal union of one man and one woman.

But the Obama Administration effectively declared that DOMA violates the Fifth Amendment's equal protection clause, and lays the groundwork for a legal standard that requires compelling evidence to justify anti-gay laws and policies.

U.S. Attorney General Eric Holder announced on Feb. 23 that the Obama Administration had determined it would not defend DOMA because President Obama views the law as unconstitutional. The decision is likely to have far-reaching consequences, from how courts respond to cases involving GLBT equality to how the next presidential election plays out in 2012.

GLBT equality advocates see DOMA as a bulwark against full legal and social equality for gays and their families, because the law reaches into so many areas of family life. Under DOMA, immigration reforms that would give gays the same rights to sponsor a life partner from another country could be blocked. Moreover, because DOMA is a federal law the denies recognition to same-sex married couples, even those states where family parity is legal can only offer couples state-level protections: Social Security benefits for same-sex spouses, federal pensions, and tax protections are beyond the reach of non-heterosexual partners under current law.

DOMA also imposes a situation that has allowed a patchwork, and highly variable, legal situation to prevail. Married couples that leave any of thThe Justice Department announced last week that it would not defend an anti-gay law from 1996 against challenges in federal court. But GOP Congressional leader John Boehner now says that the House of Representatives will probably defend the so-called "Defense of Marriage" Act (DOMA), Reuters reported on Feb. 28.

But anti-gay social conservatives say that gay and lesbian families should be denied legal recognition in order to "preserve" heterosexual unions, which, they argue, would somehow be harmed if marriage equality were granted to same-sex couples. Moreover, social conservatives warn that religious individuals would find their rights of free expression and worship abrogated if gay weddings became commonplace.

The decision not to defend DOMA in federal court has reignited a debate that pits social conservatives against fiscal conservatives, against a backdrop of political action against gays and lesbians even though last year's GOP electoral sweep was powered by voter anxiety around economic issues.

House Speaker Boehner, in an appearance on cable television provider the Christian Broadcasting Network (CBN), said, "I'd be very surprised if the House didn't decide that they were going to defend the law," Reuters reported.

Boehner echoed a proposal by former Sen. Rick Santorum that the House of Representatives could defend the anti-gay law in court in place of the Justice Department. Santorum himself is an anti-gay politician known for comparing the GLBT community to people who practice bestiality.

The article noted that the House might also propose new anti-gay laws to bolster DOMA, which has already been found unconstitutional in one federal court case.

"If the president won't lead, if the president won't defend DOMA, then you'll see the House of Representatives defend our actions in passing a bill that frankly passed overwhelmingly," Boehner said.

The bill, which was approved by Congress in 1996 and signed by then-president Bill Clinton, was the result of a much different political climate. The bill was a response to a court decision in the state of Hawaii that seemed to be opening the door to marriage equality for gay and lesbian families. Since then, 30 states--including Hawaii--have amended their constitutions in order to shut same-sex couples out of marriage parity, but seven states have approved marriage equality. In two of those states--Maine and California--voters yanked marriage rights from gay families by approving anti-gay ballot initiatives.

But a bare majority of Americans now say that gay and lesbian families ought to be granted relationship rights--a significant shift from the public attitude toward gays and their families in the mid-1990s. Moreover, the Tea Party-led electoral victories that Republicans saw take place in November were driven more by financial stress than by voter concern over social issues.

However, lawmakers may be willing to overlook the mandate from voters to focus on economic issues if it means renewing the topic of gay and lesbian families as a wedge issue to be used in the 2012 elections, when Republicans hope to oust Obama from the White House.

The article noted that Attorney General Holder has stated that he would facilitate any Congressional involvement in the court cases relating to DOMA.

Tradition dictates that any administration defend existing laws even if they are philosophically opposed to the sitting president. The decision on DOMA is a break with that tradition that many conservatives--and some moderates--decry.

House Majority Leader Eric Cantor declared himself "taken aback" by the decision, and said that as a lawmaker he had not served under a president who chose not to defend existing law. Cantor made his remark during an speech he delivered at Harvard University last week. Student protests greeted the Republican politician, the Associated Press reported on Feb. 25.